Living Outside the Law
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Outside the protection of the law THE SITUATION OF ILLEGAL MIGRANTS IN EUROPE
A synthesis report commissioned by the Jesuit Refugee Service-Europe
MATTHEW J. GIBNEY Refugee Studies Centre University of Oxford Contents
Acknowledgements
Introduction 1
I. The United Kingdom 7
II. The Federal Republic of Germany 19
III. Spain 31
IV. Conclusion and Recommendations 42
Annex: The JRS and Illegal Migrants Acknowledgements
The writing of this synthesis report would not have been possible without the assistance of a large number of people. Eddy Jadot of the Jesuit Refugee Service-Europe, who initially commissioned me to write this report, showed great patience and kindness to me during its production. Philip Anderson, Lena Barrett, Chris Boles, and Maryanne Loughry were sources of valuable advice. I am particularly grateful to Jorg Alt and Michael Hainz who were not only gracious hosts when I stayed in Munich, but provided exceedingly intelligent comments on an earlier draft of this report. Finally, I am indebted to Jobst Koehler for his work on the German report.
MATTHEW J. GIBNEY
OXFORD, JULY 2000 INTRODUCTION*
THE CALAMITY OF THE RIGHTLESS IS NOT THAT THEY ARE DEPRIVED OF LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS, OR OF EQUALITY BEFORE THE LAW AND FREEDOM OF OPINION—FORMULAS WHICH WERE DESIGNED TO SOLVE PROBLEMS WITHIN GIVEN COMMUNITIES—BUT THAT THEY NO LONGER BELONG TO ANY COMMUNITY WHATSOEVER. THEIR PLIGHT IS NOT THAT THEY ARE NOT EQUAL 1 BEFORE THE LAW, BUT THAT NO LAW EXISTS FOR THEM. HANNAH ARENDT
Over the last decade illegal migration has increasingly been recognised as an important problem for European states. With great vividness, newspapers and television have recounted stories of aspirant migrants being crammed into unseaworthy vessels or inadequately ventilated trucks in search of family, employment and safety. In many cases, those passengers lucky enough to survive the trip are forced into work in drugs or prostitution in order to pay traffickers for their trip to “freedom”. European states have not stood idly by in the face of evidence of growing illegal migration. Typically acting unilaterally, governments have employed a range of different and sometimes contradictory policy responses. In recent years, Belgium, Italy and Spain have regularised the status of substantial numbers of illegals within their territories; France, the UK and Germany have boosted penalties on employers hiring illegal workers or increased fines on commercial carriers who bring to their borders foreigners without proper documentation; and Germany and Spain have signed readmission agreements with countries such as Poland, Hungary, Morocco and Vietnam to enable the deportation of migrants without permission to reside. Behind these varied policies lie highly uncertain and contradictory public and governmental attitudes to illegal migration itself. For many Europeans, the desperate conditions that illegals are prepared to tolerate to arrive or remain in Europe are proof of the pressing need of these migrants for a new country of residence. If these migrants are not always refugees per se, they are clearly people driven from their homes by forces, like poverty and human rights violations, that they are helpless to stem. Yet many do not share this sympathetic view. For some, illegal migrants pursue a quest for economic betterment at the cost of foiling the opportunities of refugees. By filing and pursuing frivolous asylum claims, illegal migrants overload refugee determination procedures in European countries, and thereby bring the institution of asylum into disrepute. In response to asylum applicants of dubious credibility, European governments feel justified in implementing measures such as carrier sanctions, visa regimes and the use of detention * References in this report are only provided for statistics, quotations or facts not contained in the individual country reports. 1 The Origins of Totalitarianism, Andre Deutsch, 1986 pages 295-296 which prevent or deter the arrival of asylum seekers. The result is that, as Newland and Papademetriou have recently observed, “more and more often [refugees] ... are treated like illegal aliens until and unless they can make the ever more difficult case that they are deserving of protection.”2 The existence of both of these perspectives on illegal migration demonstrate how the issue of illegal migration is currently entangled with that of asylum in Europe. The attempt to disentangle these concerns is likely to have important implications for the way we view both asylum and immigration policy. Yet for all its contemporary salience, illegal migration remains a very poorly understood phenomenon. In the midst of the cacophony of recent debates on asylum across Europe, there exists an important silence: the voices of illegals themselves are rarely heard. Not only has this fact distorted most discussions of illegal migration, comforting those who prefer well worn stereotypes to an accurate appreciation of the realities of illegality; it has also limited our understanding of this phenomenon. Discussions of illegal migration tend to concentrate on the difficulties and barriers illegals face in attempting to enter European countries, rather than on the circumstances they confront once they arrive.
The Silence of the Illegals The reasons for silence are varied. On the one hand, states usually have little desire to trumpet failures in border control, not least because this is an area where they have many votes to lose. The injustices visited upon refugees are, furthermore, often implicitly accepted by governments because they act as a cheap and and convenient deterrent to others who might tempted to sample life as an illegal. This silence of governments is rarely challenged because illegal migrants are usually in no position to give voice to their treatment and experiences. While European states ritually condemn illegal migration and, from time to time, enact measures to combat it, they have generally shied away from improving the conditions illegals face in their own territory. Non-governmental organisations (NGO’s) and other groups that assist and advocate for refugees and immigrants also have little incentive to break the silence. These organisations usually have their hands full responding to legal migrants and those, like asylum seekers, at risk of being removed from the state. While they are often aware of the needs of illegal migrants, they rightly worry that involvement with illegals (or advocacy on their behalf) might tarnish the causes of their main constituency: legal migrants, asylum seekers or refugees. Illegals may be an intractable reality of European societies, but these
2 Kathleen Newland and Demotrios G. Papademetriou, “Managing International Migration: Tracking the Emergence of a New International Regime”, UCLA Journal of International Law and Foreign Affairs, Vol 3, No. 2, 1998-1999, page 657 migrants are, in the eyes of the state, criminals, violators of immigration law. Nonetheless, quietly, with little fuss and a minimum of advocacy, these voluntary organisations often provide important services to illegals. The subdued way these organisations go about their task helps to maintain the silence. The illegals themselves are also often ill-placed to speak out about their circumstances and lives. Raising awareness of their experiences is usually tantamount to advertising their own illicit status. It is, moreover, in the nature of illegality that these immigrants live a rightless existence. One feature of this rightlessness is that they are deprived of a public stage on which they could express their grievances or explain what factors lead them to their situation. Awareness of the day to day experiences of illegals is thus obscured by the predicament currently prevailing in contemporary Europe in which all of the main players have some kind of interest in silence. But there are important developments that make this an increasingly untenable state of affairs. Most obviously, the problem of illegality appears to be growing. The steep rise in migrant trafficking, increasing numbers of unsuccessful asylum seekers, the presence in European countries of refugees with temporary protection that has not been renewed, and large numbers of people who overstay legitimate tourist or work visas, together make up a veritable pot pourri of people present in Europe illegally. While some of these people constitute an underworld which law-abiding citizens rarely encounter, many illegals live and work in the mainstream of these societies, their vulnerable status unnoticed or hidden from view.
Illegal in Europe: A Synthesis The desire to break the silence and to understand better the complex problem of illegal migration in Europe led the Jesuit Refugee Service in 1996 to commission three country studies on illegal migration. The countries chosen for examination were the UK, Germany and Spain. They were intended to provide a broad view of the problem of illegality across countries with diverse migration histories. The countries examined included, respectively, an island state, the country with the largest total volume of asylum seekers in Europe, and a state with little experience as a migrant destination until very recently. These studies resulted in three separate reports: Illegal in Germany; In a Twilight World: Illegal Migration in the UK; and From a Life Project to Civil Death: Irregular Immigrants in Spain. Each of these offers detailed insights into the situation of illegals in these countries, gleaned from many hours of interviewing illegals and those who provide assistance to them. They have each been published separately. From early on, it was evident that a synthesis report bringing together the findings of these national reports would help to focus attention on the situation of illegals in Europe as a whole. This is that report. It is animated by three major aims. First, to provide an English summary of the national reports, written originally in English, Spanish and German respectively. In the three chapters that follow this one, I shall outline the findings of each study in some depth. While I have striven to summarise these reports in a way that makes them speak to each other, I have not attempted to impose a unity on them. Each of the groups of researchers started with their own interests and methodologies, and were allowed a great deal of scope to undertake research in a way that best suited the national context they faced. Those seeking a fuller appreciation of situation pertaining in each of the countries examined are advised to consult the national reports. Second, this report aims to draw out some common themes from the national studies that are likely to be applicable across all European Union countries. As we shall see, the number of researchers, the amount of time spent gathering information, and the volume of interviewees consulted differed in each of the country reports. Yet the reports reveal that there are striking similarities (as well as important differences) in the circumstances faced by illegals across the three countries. Third, this report proffers a number of recommendations for policy responses towards illegal migrants at European level. The policies advocated here are intended to form the basis of humane and rights-respecting responses by European governments to the phenomenon of illegal migration.
Methodologies In commissioning the three projects that make up this synthesis, the JRS allowed the national teams a great deal of flexibility in their choice of methodology. This was considered appropriate because researchers faced very different circumstances in the countries they studied. Access to state officials, to NGO’s and voluntary organisations and, most of all, to illegals themselves—who, of necessity, have little motivation to bring their existence to the attention of others—resulted in different styles of report across the three countries. The last issue, in particular, of how to construct tools of analysis that could respect the legitimate desire of illegals for secrecy, proved an important challenge for the researchers. As with other aspects of methodology, the different national teams meet this challenge in different ways. While full details of the methods used by each time can be gained in the three final reports (published separately), I want to outline briefly here some of the main features of the methodological approaches of each study. The German study, Illegal in Germany, was undertaken by one author under the guidance of two academic supervisors. The study was made in one German city, Leipzig, located near the border with Poland in Eastern Germany. In all, some 77 interviews were conducted with thirty-five different illegal migrants. These interviews were supplemented by interviews with contact persons (those with first hand professional or personal experience with illegal migrants) on a further 60 illegals. The latter group of illegals were either no longer living in Leipzig or had privacy concerns that prevented their involvement in the study. In addition to interviews, the files of some 87 illegal immigrants were also selected at random from official records and evaluated. In order to verify and to the test the recounted experiences of illegals, as well as to gain a broader insight into this social phenomenon, some 39 interviews were conducted with officials at Federal, Lander, and local authority level; and another 60 interviews were undertaken with contact persons who have had direct knowledge and experience of the undocumented. The British study, In a Twilight World, was conducted on a smaller scale and over a shorter time period. A single researcher undertook field research on illegality in London for a period of six months between January and July of 1997. Interviews with illegals (and those in illegal-type situations) also lay at the core of this report. In all, the situation of some 16 immigrants was examined, in the case of three information was gained through contact persons (“trusted representatives”). Of those interviewed, only three were women and every illegal was aged between 26 and 40. As with the German study, the information gained in the interviews was supplemented and tested against the experiences of others with knowledge of illegal migration or illegal migrants, including representatives of migrant support and NGO groups. Representatives from formal legal and governmental organisations involved with migration, including officials from the Home Office, were also interviewed. The largest research project, From a life project to civil death, was undertaken in Spain by a team of university researchers. A sample of some 100 illegals volunteered to co- operate by sharing their experiences of entering and residing in Spain. In contrast to the other studies, the Spanish team attempted to conduct interviews in such a way as to get an accurate picture of the experience of illegality across the national polity as a whole. This was achieved, first, by ensuring the geographic diversity of the sample. Illegals resident in five different social environments were interviewed: Cataluna (a metropolitan area of Barcelona; in the Province of Girona); Madrid (city and outskirts); Murcia (Province); Andalucia (Malaga, Almeria, and Cordoba), and the Basque Country (Araba, Gipuzkoa, and Bizkaia). Because countries of origin impact upon the experiences of illegals, the study also ensured a diversity of national origins amongst the interviewees, with people from the Maghreb, Latin America, Sub-Saharan Africa, China and Eastern Europe represented in the sample. The diversity of the sample not only increased the report’s chances of accuracy; it also helped to ensure the anonymity of the illegals interviewed, an important consideration in the Spanish as in the other studies. The ability to compare the situation of illegals across the countries involved with scientific accuracy is limited by the different methodologies used by each team. However, despite their different methodologies, the researchers uncover striking similarities in the experiences of illegals. Furthermore, the studies are fused together by one common methodological feature: at the core of each report are direct interviews with illegal migrants. Consistent with the original intentions of the JRS, these reports attempt to understand the experiences of illegality through the eyes of the illegals themselves. These experiences are, moreover, always reinforced by discussions with organisations which work directly with illegals, including NGO’s and ethnic community groups, and with experts in government and academia.
Outline The analysis of illegal migration in Europe that follows is divided into four chapters. The three, synthesized country reports are first presented: the United Kingdom (Chapter 1), the Federal Republic of Germany (Chapter 2) and Spain (Chapter 3). The concluding section of this report (Chapter 4) is devoted to Conclusions and Recommendations. Here, the main implications of the country reports for Europe as a whole are outlined and a number of policy and advocacy recommendations for responses to illegal migration are made.
I. THE UNITED KINGDOM
The United Kingdom is an island state, simultaneously part of Europe, yet separate from the continental land mass. This feature of Britain has exercised a profound influence on its recent immigration and refugee policy making. It has given rise to a view that as an island Britain is uniquely able to secure itself against unwanted immigration. In contrast to countries like Germany and Spain which possess large land borders, all immigration to the UK is channelled through a small number of tightly controlled sea and air ports. In policy terms, the perception of uniqueness has also had important consequences. It has resulted in a very skeptical attitude at governmental level to European Union attempts to construct a “frontier free” Union, evident in Britain’s reluctance to participate fully in the Schengen Treaty and its decision to opt in to the Amsterdam Treaty only partially.3 Britain today remains one of only
3 See, for example, the UK House of Lords, Select Committee Report, UK Participation in the Schengen Acquis, published in March 2000, at The Context The British study was undertaken primarily between January and July 1997, a time of some public anxiety over rising numbers of asylum seekers. These concerns were given legislative force by the Conservative government of John Major (and previously under Margaret Thatcher) which had carved out a reputation for toughness on unwanted immigration generally and on “bogus” asylum applicants in particular. Between 1993 and 1997, the government enacted two important pieces of legislation (in 1993 and 1996 5 ) which aimed, in large measure, to deter and prevent asylum applications. New restrictions on the ability of asylum seekers to claim welfare benefits and humanitarian residence status (referred to as office.co.uk/pa/ld199900/ldselect/ldeucom/34/3401.htm> 4 A basic summary of recent British legislation relating to asylum can be found in Alice Bloch, “A New Era or More of the Same? Asylum Policy in the UK”, Journal of Refugee Studies, Vol 13, No. 1, March 2000, pp 29-42 5 The acts were the Asylum and Immigration Appeals Act, 1993 and the Asylum and Immigration Act, 1996. “Exceptional Leave to Remain”), an expansion in visa requirements and the boosting of fines on carriers bringing foreigners to Britain without proper documentation were introduced. This anxiety over asylum seekers was, in reality, anxiety over illegal immigration. Low success rates in asylum determination proceedings, partly the result of restrictive application of the Geneva Convention, were generally taken as proof of widespread abuse of the asylum system by illegal immigrants. But the merging of asylum and illegal immigration concerns also appeared to be directly encouraged by the nature of refugee determination process itself. Lack of resources and bureaucratic inefficiency led to large backlogs with the result that asylum applicants could expect to wait a number of years for their claim to be decided. Over such a lengthy period of time, any asylum seeker could be expected to have established ties and connections with the host community that made the possibility of living without the support of the state either feasible or even desirable. The failure of governments to remove (or deport) unsuccessful asylum applicants did nothing to reduce the number of illegals present in Britain or to discourage an association of asylum with illegal migration in the public’s mind. Who are the illegals? Estimates vary widely on the number of illegal immigrants residing in Britain. The Home Office, the government department responsible for immigration, has recently estimated the total at some 40,000. Unofficial estimates, however, go much higher, and even the most conservative sources usually concede that numbers are currently on the rise. Total numbers, of course, tell one very little about the situation of individual immigrants. The British study looked closely at the experiences of some fourteen illegal immigrants or, more accurately, individuals without official status in the UK. Their countries of origin reflected a great deal of diversity, but tended to be concentrated in Africa, with individuals from Nigeria, Morocco, Zaire, Sierra Leone, and Cameroon. There was also one illegal from Turkey, a Kurd. Just as the countries which generate illegal migration are diverse, so, too, are the ways that one can become illegal in the eyes of the British state. Illegal migration typically conjures up visions of surreptitious movement across borders under the cloak of night, but the term illegal migrant is a catch-all category that obscures the varied ways that immigrants come to be outside the protection of the law. Amongst the interviewees, two primary groups of illegals dominated. First, those present in the state who had never been given valid leave to enter by the British authorities. This category included those who entered the country clandestinely (such as those trafficked into the country evading official ports of entry) and those who passed through entrance control but gained entrance fraudulently (for example, by withholding material facts from the authorities or using a fake passport). The second category is constituted by those who attain valid leave to enter, but who breach the terms of their admission. The vast majority of this group is made up of those who overstay their period of entrance permission or violate its specific requirements (such as those who take up employment on a tourist visa). These two categories in no way exhaust the category illegal immigrant. Many foreigners legitimately living in Britain, including asylum seekers and domestic workers, may find themselves facing circumstances very similar to illegals because of lost or inadequate documentation. The various pathways to illicit residence are mirrored in the complicated life histories that explain how individual immigrants come to be illegal. An examination of those illegally resident in Britain challenges the common view that the life of an illegal results from an active and deliberate choice. There are indeed those who make such a clear choice. One interviewee, a Kurd from Turkey, who already possessed asylum in France, decided to come to the UK using false documentation in order to improve his employment and social welfare prospects. The growth of trafficking networks, moreover, mean that deliberate and premeditated acts of illicit entrance are probably on the rise. Yet the vast majority of those interviewed for the study had entered Britain legally after having been given valid leave to enter and decided to reside illegally only after a period of residence that had seen them establish ties, contacts and connections in the country. The majority of the undocumented, then, drifted into the life of an illegal. They entered a realm outside the basic protections of the law as much as the result of decisions they omitted to make as deliberate choices they did make. In a state, like Britain, where border control is very effective, there is reason for believing that this is the characteristic mode of illegality. Even if many illegals do not explicitly choose a life of illegality, they often have powerful reasons for preferring life without legal status to the prospect of returning to their country of origin. Some of those interviewed claimed to have fled circumstances in their home country that would have made them eligible for refugee status under the Geneva Convention or, alternatively, some form of humanitarian status. These individuals fit the traditional distinction of those who had been “pushed” out of their country rather than “pulled” towards a new one. Why, then, did they not claim the official protection of the state through asylum? Entrance into official procedures usually held out the prospect of a long, drawn out period of limbo under conditions that might involve detention and meant restrictions on the right to work. For others, an asylum application risked bringing themselves to the attention of the state should their claim prove unsuccessful, thus rendering themselves liable for deportation; others still, had tried and failed in their asylum applications and had chosen a life underground to avoid being sent back to their home country, which they continued to see as posing serious risks to their security. More commonly, however, continued life as an illegal signalled a desire not to return to a country where economic and political instability are entwined and which result in migration flows that do not fit within the traditional categories of the push/pull distinction. Rather than facing persecution, those who do not wish to return may have left or not wish to return to a place where economic opportunities are limited by political corruption or where human rights violations are general and endemic. The list of countries from which the interviewed illegals originated gives some, albeit circumstantial, evidence of the kinds of instability that leads many to try life as an illegal. Other factors also play a role in explaining the movement into a life outside the normal protections of the state. Access to jobs, relatively high rates of pay, the opportunity to learn English, and to obtain an education were powerful incentives. Moreover, as visa restrictions and carrier sanctions have closed off avenues for legal entrance to Britain for people from Southern countries and Eastern and Central Europe, those wishing to reside in the UK have turned to trafficking networks. Not only does a brief flirtation with these criminal networks open up the possibility that the immigrants themselves will be drawn into criminal activities. But those trafficked typically need to find work as quickly as possible upon arrival to reimburse traffickers. Following the legitimate route and claiming asylum is not an appealing option because it may result either in detention or, at least, heavy restrictions on the right of work. Life as an illegal, on the other hand, offers the possibility of gainful employment and settling accounts with traffickers. Personal considerations are also a strong factor in explaining illegality. The drift into illegality by overstayers often reflects a transformation in their goals, expectations and aspirations. Perhaps the most important transformation comes about because of personal relationships and children. For one Nigerian interviewed, it was only marriage and the birth of children that made remaining in the UK imperative. For another illegal, thirteen years of continuous residence in the UK slowly impressed upon him that Britain is home. In his case, this realisation was not the result of ties and relationships formed within Britain, but the cessation of ties to his country of origin. It was the death of his father that led him to reorient his view of home. Finally, many illegals remain in Britain because they have no opportunity to return home without jeopardizing their ability to return to the UK. It is not uncommon for illegal immigrants who enter with false documentation to have to return this documentation to migrant traffickers immediately after arrival to enable its reuse. As a result, many illegals are left stranded in Britain, unable or unwilling to return lest they be discovered by the authorities. One of the interviewees paid £4000 for a visa of sufficient quality to enter the UK, but later discovered that the authorities are increasingly on the look out for documentation of this sort. Poignantly, one interviewee recounted how the lack of proper documentation kept him from attending his father’s funeral. The examples show the paradoxical effect of strict entrance control. The knowledge that it would be difficult to return to Britain should one go home often serves to convince illegals that they should remain permanently. Life in Britain The life of an illegal immigrant is a life lived outside most if not all of the usual protections of the state and its agents (the police, the courts, etc.). In order to survive in Britain illegals must therefore rely on their own wits and means or on the assistance of non- state authorities. The British report examined, largely through interviews, a range of concerns which impact upon the lives of illegals in United Kingdom, including accommodation, employment, income, health, education and personal relationships. In the remainder of this chapter, I will summarise the study’s main findings in these areas. Accommodation The experiences of illegals in seeking and maintaining accommodation in the UK are as diverse as the category of illegals itself. Some illegals live in council properties, many in private sector accommodation, some with family, friends or acquaintances, and a few in the sanctuary of churches or other religious institutions. The nature of this accommodation ranges from housing that has been occupied for years, to transient stopping points serving as a base from which to find permanent accommodation to temporary resting places in the battle to keep one step ahead of the authorities. At the most desirable end of the accommodation market are those who have found various forms of state-sponsored (or council) housing. This form of accommodation is usually available only to overstayers who acquired the housing while legally resident and have managed to retain it despite the change in their status. However, at the time of the report, legislative changes were fast whittling away opportunities for both illegals and asylum seekers to occupy public housing. The 1996 Asylum and Immigration Act removed from asylum seekers any entitlement to public housing if they failed to apply for asylum within a short time of entering the UK. The crisis in accommodation that resulted from this Act was partly lessened by a subsequent High Court decision that used the obligation of local councils to provide shelter to asylum seekers under the 1948 National Assistance Act. Restrictions on asylum seekers to public housing ensured that fewer people who might eventually become illegal (through, for example, the rejection of their asylum applications) could have access to this option. Other legislative developments, however, have impacted more directly on illegal migrants as a group. Following the Council Act of 1996, local councils were obliged to assure themselves that new tenants have legal immigration status. The Act is a powerful deterrent to illegals wishing to claim state-subsidised accommodation. One effect of these legislative developments has been to reinforce the dependence of illegals on the private sector. Here, established ethnic communities usually play an important role. In London illegals often rely on fellow expatriates to direct them to a place where they can stay for a few days while looking for more permanent accommodation. Fellow expatriates are typically sources of valuable information on the availability of affordable and accessible places to reside permanently. Illegals also draw on personal networks or rely on groups within civil society. One interviewee, an overstayer, was given sanctuary in a local church, with the full support of the parish at large (and sections of the local community including the local Member of Parliament). In another case, a supportive local council was described by one illegal as being “really excellent” in its provision of support. In a vulnerable situation, enjoying few of the protections official residents take for granted, illegals are often met with generosity by private individuals and charitable organisations. But this generosity is a matter of charity, not of right. In many circumstances, the undocumented face egregious exploitation in the housing market; exploitation that, because of their rightless situation, they lack lawful means of setting to rights. Confined, as they typically are, to the cheapest, most run down and shadiest end of the property market, they have little chance of finding decent accommodation. The likelihood that a land-lord will live up to their minimal responsibilities may be slim if they are aware of their tenant’s dubious status. In the case of one interviewee this kind of weak bargaining position led to a situation where the landlord refused to fix a hole in the roof of the rented property. Threatened constantly by exposure to the authorities, illegals are in a uniquely vulnerable market position. The threats they face can, moreover, come from unlikely sources. As well as assisting those in need, ethnic community groups can turn out to be the most dangerous exploiters of the illegal population. Stories were recounted during the study of extremely cramped and exorbitantly priced accommodation being provided for incoming illegal migrants. The ties of ethnicity and nationality that so often serve to make survival as an illegal possible can just as quickly turn into fetters that facilitate exploitation. Employment and Income A major attraction of the UK to illegal migrants has been the prospect of work, especially as Britain has enjoyed very low rates of unemployment in recent years. Illegals usually have little choice but to seek work because of their ineligibility for any form of government support including unemployment benefits. They typically work without the safety net of unemployment benefits or redundancy packages. Illegals are thus required to get a job as quickly as possible and to keep it. Their pressing need for work often limits their ability to seek out the best possible pay and conditions, leaving them open to exploitation. Most of the illegals interviewed had managed to find work. Their success is rarely a matter of luck. Matching workers to employment requires the relaying and exchanging of information between potential buyers and sellers of labour. This task, as with accommodation, often falls on established ethnic networks, friends, relatives, acquaintances and other informal and semi-formal modes of communication. A good example of the latter is what is colloquially referred to as the “Wailing Wall”: the side window of a newsagent in London. Here, recent arrivals scrutinize cards written in a variety of different languages and scripts advertising accommodation, requests for lifts, and an array of job vacancies. Many agreements are reached in the surrounding cafes on matters that will determine the experience of illegal immigrants in the UK. Other meeting places play a similar role. One Latin American Saturday morning football league event doubles as a place where illegals can learn of job opportunities and available accommodation. In London illegal migrants find work in a vast array of different occupations, characterised sharing only the ability of the employers to pay their workers “off the books”. Most commonly, illegals are employed as textile industry workers, couriers, mini-cab drivers, cleaners, food service workers and in the building industry. Amongst those interviewed were illegals working in bakeries, as a mini-cab driver, as a pasta chef, and as a musician. The report also pointed to at least one UK sector structurally dependent on illegal immigrants: the agricultural (in particular the fruit picking) sector in East Anglia. The source of this labour supply (which did not include any of those interviewed in this study) were workers recruited from Central and Eastern Europe who entered Britain in breach of immigration regulations on “working holidays”. Physically isolated from the main urban centres, separated by language from those around them, and dependent upon their employers for language and food, these workers are highly vulnerable to exploitation. The benefits for employers of a steady stream of illegal immigrants are relatively obvious. Employers can hire them below the market (now the statutory minimum) wage rate and also avoid any kind of tax, pension or social insurance contribution. Many of interviewees also appreciated the benefits of this arrangement. While for some, like one interviewee currently in detention, no work would be too menial should they be allowed to remain in the country, others were happy with their particular form of employment. The two interviewees who worked in bakeries both found the work satisfactory, in spite of long hours, onerous conditions and modest pay. Another interviewee had even managed to carve out a career with an upward trajectory for himself. He spoke with pride about his progress through a series of casual jobs to a position as a pastry chef. He lost his job when he was apprehended by immigration authorities and placed in detention. The last example illustrates how the reality of being an illegal worker can come crashing through at any time. It is a reality that occupies the minds of all illegals. No amount of experience or success as a mini-cab driver can quell the anxiety that a routine stop by the police to check one’s driver’s licence will end with a request to view one’s passport in order to verify immigration status. Recent developments, moreover, suggest that the state’s hand may be becoming heavier. The 1996 Act introduced sanctions of up to £5000 on employers caught hiring illegal labour. Measures like this, which rely on employers as an internal arm for the enforcement of immigration controls, may enjoy some success in reducing illegal migration. But it seems likely that in the very diverse and decentralised market for illegal labour in London, the authorities will face an uphill battle preventing illegal migrants finding work. Health In spite of its famed National Health Service, health problems are one of the greatest concerns of illegals in Britain. According to the study, three major health issues occupy the minds of illegals: accidents, mental health, and AIDS. I shall now touch briefly on each of these concerns. Typically, illegal migrants are young, physically fit and psychologically resilient. Dealing with the obvious challenges of life as an illegal positively requires good health. Accidents, however, can strike down even the healthiest of illegals, adding a new layer of vulnerability to their experience in the UK. Concern about the consequence of accidents loom large for illegals because they are often employed in relatively hazardous occupations, such as in kitchens, bakeries, or on construction sites. Moreover, as this work is part of the black market, their employers have little incentive to uphold even minimal health and safety standards, let alone to compensate workers for time off due to injury. In terms of mental health, some illegals were found to face problems similar to refugees. Acute anxiety was a common complaint, as it is amongst those who have been tortured, experienced a traumatic event, or lost one’s home. This cross-over between the experiences of refugees and illegals is not coincidental. As community health organisations have increasingly recognised, a proportion of illegals are (de facto) refugees who have never entered the asylum process or have failed to gain asylum. The latter group usually have access to a similar standard of mental health care as when their asylum claim was being determined. The former, however, are often isolated and left to deal with their psychological problems on their own. The level of stress associated with maintaining an illicit existence in the state is a psychological burden that most illegals have to bear. Concerns about AIDS were also expressed by those interviewed. One interviewee who believed that he had contracted the illness, was worried that he would be forced to return to Peru, where he would receive substandard treatment, should the British authorities find out. Patients can, however, usually get treatment for the disease without registering with the National Health Service. Moreover, those who contract the virus may be eligible for a grant of Exceptional Leave to Remain (ELR), a form of humanitarian status offered on a discretionary basis by the Home Office. Yet the interviewee’s concerns were still justified. In order to apply for ELR, he would have to have brought himself to the attention of Home Office authorities. This would have been risky given that any progress of the illness into a state of remission might have justified his deportation. Sometimes medical treatment is a pressing need. When this is the case illegals generally resort to a number of strategies. Minor ailments are typically pushed aside or help in dealing with them may be sought within the illegal’s immediate social network. For more serious ailments, like injuries incurred through an accident at work, other courses of action are often pursued. One interviewee described how one could obtain a false national insurance number. Recent changes, however, has made this process more difficult. Consequently, some illegals resort to impersonating friends and using their National Insurance numbers in order to gain the treatment they need. Education Illegals in Britain have highly diverse educational backgrounds. Contrary to popular stereotypes that portray the undocumented as illiterate, rural dwellers from backward countries or fabulously-educated emigres from Eastern Europe, the report shows that illegals cover a whole spectrum of educational experience. Some interviewed had virtually no education; while others had engineering or chemistry degrees from respectable universities. These qualifications, however, tended to have little influence on their work prospects in the UK If it is difficult to generalise about illegals’ educational backgrounds, it is easier to do so with their motivation to learn. For some of the undocumented, typically East Europeans, time in Britain offered a chance to acquire or improve their English. Proficiency in English is a valuable commodity for those wanting to be successful in business back home. For other illegals, the drive for educational self-improvement is no more clearly indicated that in the proportion of overstayers enrolled in courses of various kinds. Of the small sample that informed the UK study, five interviewees were enrolled in courses. In the realm of education, there is, however, increasing evidence of a government clampdown that will ultimately affect illegal migrants. In April 1996 the Department of Education announced that in future those enrolling for higher education courses in the UK must give proof of their status as having “Indefinite Leave to Remain” (the British equivalent of permanent residence) to be eligible for the discounted fees that nationals pay. This policy seems likely to be a two-pronged disincentive for illegals. On the one hand, it will force those illegal immigrants (and asylum seekers), who cannot afford to pay fees at the international student’s rate out of education. On the other, many illegals will be scared off by the fact that the new policy will result in an increasing likelihood that their immigration status will be checked. Education also has a dramatic affect on the lives and prospects of children. According to the report, a number of directives have been given to schools in the 1990s requesting them to check the immigration status of new pupils in order to deter overstayers who have children enrolled in state schools. Far from deterring illegals, however, such measures sometimes resulted in illegals gaining the support of a local community outraged that children should be blamed for the “sins” of the parent. Significantly, the two illegals interviewed who have received the most support from their local communities to stay in the country both had their children in schools. The teachers and students of the schools played a key part (through letter- writing, petitioning, and demonstrating) in the campaigns to keep these illegal in the state. More generally, the report suggests that the governments have had to face a situation where schools are very reluctant to check children’s immigration status lest they be viewed as an extended arm of immigration control. Personal relationships and social activities Overstayers usually have families residing with them in the UK. Illegal entrants, on the other hand, are more likely to be single. Nonetheless, many in the latter group find themselves going through familiar patterns of the human lifecycle while in the UK: partnerships are formed, children are born, and friends are made. The stigma of illegality casts a shadow over all of these relationships, even if the shadow cast is different in each individual case. For one illegal interviewed the experience of living in Britain has been one of real loneliness and isolation. The uncertainty associated with living in a country without legal permission was seen as corroding his ability to create and maintain stable personal relationships. Two others interviewed spoke of a range of protective measures undertaken in their social lives—including avoiding the disclosure of personal details and pretending to be of a different nationality—in order to avoid incriminating questions about their status. The financial austerities of life as an illegal were also cited by one interviewee as a barrier to friendships. Lack of money made it difficult for this illegal to pay his own way at social gatherings. Yet despair and loneliness alone do not capture the experience of illegals. For one of those interviewed, the desire to attain legal status has become a driving motivation. Needless to say, entertaining this goal is far easier when one has the support of others, including the local community, for one’s endeavours. For at least two interviewees, the threat of deportation has mobilised community interest in and support for their plight, leading them to make new friends. Support of this kind is more typical of overstayers who have experienced some extended time as a legal resident during which they have been able to establish contacts and ties with their local community. Leisure activities provide an important source of contacts and networks for both overstayers and illegal entrants alike. While the leisure time of illegals is typically limited both by the need to work as much as they can because of their vulnerable status and their concentration in jobs requiring overtime or shift-work, many of those interviewed enjoyed a range of leisure activities. The most common forms included church-going, sport and dance. The outlet for these activities was typically local ethnic and community organisations. A number of those interviewed also found time to undertake voluntary activity. Amongst the illegals, one worked for an AIDS charity (the Terrence Higgins Trust), one gave counselling and spiritual advice to members of her local community, and another worked for a victims of war support group. Life planning The last area examined in the British study was, fittingly, life planning: the ability of the illegals to organise their current lives with an eye to future goals. Clearly such planning presumes a degree of autonomy and control over the forces that shape one’s life that illegals often lack. Some interviewees complained that their lives were characterised in large measure by uncertainty and unrest, though, for one, these tensions were eased by the pursuit of an educational course. More generally, some of the illegals (especially the overstayers), who had drifted into their current situation were understandably preoccupied with their and their children’s search for legal residence in the state. They found it very difficult to articulate any plans for the future beyond the goal of regularising their status. In the case of one interviewee living in church sanctuary—which he likened to a form of imprisonment—this was an understandable reaction. For those illegals in detention, the prospect of a future life in the UK looked even dimmer. “My life is broken...”, he uttered, “ Paradoxically, however, for some life as an illegal is a way of guaranteeing at least a degree of autonomy. As British state practices towards those seeking asylum come increasingly to be characterised by measures aiming to deter applications, such as work restrictions, the availability of public housing, and the increased possibility of detention going underground becomes a serious option for those wishing to retain control over key areas of their life. This reason for stepping outside the system seems even more rational when the motivation for staying in the state is to escape persecution or great suffering should one return. Yet the search for autonomy and independence from state authorities may prove to be a fruitless one. One illegal, who was consistently on the run to escape from authorities, simply laughed when asked about the possibility of planning for the future. Conclusion In June 2000 customs officers at the port of Dover in the south of England opened a refrigerated lorry to find the bodies of 58 Chinese people who had attempted to secrete their way into Britain. The consequences of this grim discovery have been mixed for the debate on illegal migration in the UK. On the one hand, the deaths impressed upon British public opinion the need for a co-ordinated European strategy to crack down on trafficking networks, opening up the potential for greater cooperation with other European countries on the issue of illegal migration.6 Furthermore, the government has, in the aftermath of the deaths, seemed increasingly amenable to the need for some, legitimate avenues by which aspiring immigrants might enter Britain.7 On the other hand, however, the events in Dover have served to reinforce the view that illegal migration is largely a problem of border control. While this remains the primary focus of the illegal migration debate, moves to ameliorate the plight of those illegals actually living in Britain are likely to be limited. II. THE FEDERAL REPUBLIC OF GERMANY The Federal Republic of Germany has attracted more asylum seekers in than any other European country over the last twenty years. This is explained partly by the liberal provisions of the country’s Constitution which, until 1993, recognized a broad-ranging right of asylum to foreigners requesting asylum at or within Germany’s extensive land borders. But 6 See, for example, “An Avoidable Tragedy”, The Guardian, June 20, 2000 7 "New Open door Policy for 'Skilled' Immigrants, The Independent, July 21, 2000 the numbers also reflect Germany’s controversial history of guestworker (gastarbeiter) migration, particularly from Southern Europe, Turkey and North Africa. This worker movement has, since the early 1950s, created extensive migration networks between Germany and a range of refugee and economic migration source countries.8 The migration pressures that have resulted have led consecutive German governments to espouse the ethos that the Federal Republic is “not a country of immigration”, despite the fact that it has in recent years experienced immigration levels on a par with those of the United States. The pressures that recent asylum and immigration movements have placed on this public ethos have been explored in great depth in recent years. Literature has abounded on the impact of the Aussiedler (ethnic Germans from the former Soviet Union granted citizenship arrival in the Federal Republic), asylum seekers, and European Union migration on German society. Much less attention, however, has thus far been paid to illegal forms of migration in Federal Republic. Jorg Alt’s study, Illegal in Germany, sets out to fill this gap. In the course of the work, the reasons why illegal migration is under-explored and poorly understood in the German context quickly become apparent. The existence of steady streams of illegal migrants challenge the dominant view that constitutional amendments of 1993 solved the Germany’s asylum crisis of the early 1990s, even if the annual number of official asylum applicants was 230,000 less in 1999 than it had been in 1992. 9 An examination of illegal migration raises the possibility that tougher entrance policies and a more restrictive entrance policies simply divert asylum pressures on to illicit avenues for entrance. The problem of illegality also forces us to consider whether illegal migration might serve an important function for a country that publicly denies its need for economic migration. Like the gastarbeiter migration of the 1950s and 1960s, contemporary illegal migration offers a discrete way that economic and political actors might square the need for a ready, cheap and flexible supply of labour with Germany’s desire not to have immigration for permanent settlement. The study Illegal in Germany was conceived as an empirical and analytical study of illegal migration in the Federal Republic. The study’s aim was to discover how the problem of illegality looks from three different perspectives: from the viewpoint of the illegals themselves; from the view of those who assist and regularly interact with them; and from the view of experts familiar with the relationship between illegality and broader German society. Together these perspectives shed light on the lives of the men, women and children who make 8 See, for example, Philip L. Martin, “Germany: Reluctant Land in Immigration” in W. A. Cornelius et al, eds, Controlling Immigration: A Global Perspective, Stanford UP, 1994 9 Migration News, Volume 7, No 4, April 2000 at Who are the illegals? As in other European countries, there is little solid information available on the total number of illegals currently resident in Germany. While one official estimate has recently put the number at 500,000, the study suggests that that figure may represent a significant understatement. A figure closer to one million for Germany as a whole and of 8,000 for Leipzig alone appears closer to the mark. The report identifies two major types of illegal immigrants currently present in Germany. First, those who have entered Germany without permission. This group is composed of those did not possess valid entry papers upon arriving in Germany; if this violation were to be discovered by the authorities, they would likely be deported or removed from the state. Those that successfully evade border control become unauthorised residents, people who do not have valid residence papers for Germany and, because of the nature of their entry, are unable to have them. Illegal entrants are analytically distinguishable from another significant group in the German case: bogus legal immigrants. These are people who enter or reside in Germany on papers (passports, identification cards, visa stamps) that are false, but are assumed by the authorities to be legitimate. This category can be subdivided further into those who obtained their papers irregularly by, for example, evading official application procedures to obtain falsified stolen documents and those who gained legal entry papers through authorised offices after giving false information. The latter group includes those who claim entered Germany as tourists or visitors, hiding their real intention to work. These different categories give an indication of how people come, in official terms, to be illegal. But why do they choose to live life as an illegal in the first place? The study found that most of the illegals interviewed were either self-described refugees or labour migrants. While other reasons occasionally motivated illegal entrance and residence (such as the desire to join family or relatives) a full two-thirds fell into these two groups. Refugee Illegals A substantial proportion, though less than the majority, of those interviewed gave as their reason for entering Germany the desire to escape from persecution, violence or oppression. They claimed to have fled persecution by state (or state sponsored) authorities on the grounds enumerated in the Geneva Convention of 1951, or more generalised violence associated with war or the denial of human rights. A commonly cited individual reason for departure was fear of imprisonment without trial. The refugee illegals resident in Leipzig were typically distinguishable from other illegal migrants by their country of origin. The majority of the refugees interviewed came from countries outside Europe; most came from Africa and Asia, though some were from Turkey. Some had entered Germany with their families. In general, they saw little option for return to their countries of origin and thus regarded Germany as the focal point of their both their current and their future lives. Labour Illegals The other major group, labour or economic migrants, came to Germany in order to improve their prospects for employment or in search of higher wage rates. Many were driven to find work outside their country of origin by an inability to get by on the income they earned at home. Illegal foreign work was thus seen as a way of addressing debts incurred through, for example, having children. With one exception, all of the interviewees in this group came from Central, Eastern, or Southern Europe. Some 95% expressed a desire to return to their country of origin, recognising it as their real home. This positive attitude towards return was reinforced by the existence of family and other dependants back home, who were typically in receipt of remittances sent by the illegal immigrants. Migration Networks and Trafficking In the British study it was apparent that many illegals had drifted into life as an illegal by overstaying. In Germany, the situation is quite different. While there were certainly cases of overstayers in the German study, the situation in Leipzig is indicative of more organised and premeditated patterns of movement by illegals. One indication of the systematic nature of illegal migration was the level of sophistication in the operation of networks that assist illegals with entrance and residence. Individuals, groups of people, and semi-formal and formal organisations, all played an important role in preparing for, facilitating and enabling illegal stays in Germany. The study confirmed the existence of three distinct types of networks available to illegals. The first were private networks, composed of family, friends, and personal acquaintances that operated on a micro-level to facilitate entry. These networks are informal, idiosyncratic and typically do not attempt to make a profit out of the provision of their services. They are thus able to exercise a great deal of discretion in determining to whom they will offer their services. Commercial networks are more organised, coordinated and structured. They offer of a wide range of services to illegals at the going market price, which is set by supply and demand and the degree of risk involved. The illegals interviewed were generally very happy with the way these organisations worked. This is unsurprising because the success of this kind of network relies, as with any commercial enterprise, on customer satisfaction. A degree of responsibility thus usually exists between customer and client. Those who, for one reason or another, are unable to pay for the services they receive will find themselves on the receiving end of sanctions similar to those used by legal credit organisations (e.g., they risked having assets seized in lieu of payment.) A final set of networks are those organised and run by criminal organisations, commonly referred to as trafficking networks. These networks share some important similarities with commercial networks: both are semi-formal organisations; both provide services in return for payment. But there are also important differences. Criminal networks are rarely interested in the goal of customer satisfaction. These organisations survive in spite of extortionate pricing and outright deception about the services they offer and the opportunities available in the destination country. They are in many cases simply front organisations intent on sucking potential immigrants into a netherworld of criminal activity, such as prostitution and drugs. Sanctions against non-payers by criminal organisations have a sinister form. Physical violence directed against non-payers makes the risks associated with using networks of this kind very high. Private networks of the type described above have historically formed an important part of migratory movements. Access by potential illegals to people with experience and knowledge of the country of destination lessens both the costs and the risks of international migration and facilitates integration. Commercial and criminal networks, on the other hand, flourish best under certain conditions, namely in the context of tight exit or entrance restrictions, where demand for exit or entry far exceeds supply and where there are powerful incentives for immigration. Those fleeing violent events and circumstances, like refugees, were found to be more likely to use organised migration networks than labour migrants. The reasons why were apparent in the German case. As we have seen, unlike labour migrants, refugees usually travel long distances from outside Europe to enter Germany, increasing the need for more elaborate preparation and assistance. Moreover, the fact that they are more readily identified as foreigners (through their physical appearance and language) means that they often need all of the assistance they can get—or can pay for—to avoid bringing themselves to the attention of authorities. Living illegal There are important differences in the way that illegality impacts upon the lives of individual immigrants. Life for illegal (de facto) refugees in Germany, for example, tends to be characterised by a particularly vulnerable and secretive existence. The same factors (race, country of origin, languages spoken) that push refugees to use commercial and criminal trafficking networks, make it imperative that they live an inconspicuous life while in Germany. They must undertake the search for accommodation and work under a veil of secrecy, as knowledge of their status is likely to lead to their removal and return back to the dangerous place from which they fled. Understandably, refugee illegals attach great value to anonymity. They take on work and accommodation that allows them to remain as inconspicuous as possible. Work in kitchens or as cleaners, for example, allows them to have minimal contact with the outside world and to avoid public spaces. This drive for anonymity, unsurprisingly, has an important effect on the refugee illegal’s social relationships. Those that are unmarried often attempt to use marriage as a way of gaining official status in Germany; others attempt to buy papers that that would give them a semblance of legal status. Illegal refugees are generally more likely to be dependent on the help and assistance of others in their struggle to survive, in particular employers and relatives. This dependence can be strained by the real psychological needs of illegal refugees which, according to the study, often manifested itself in extreme paranoia and a sense of stigmatisation. The situation of labour migrants differs significantly. For them, the fear of expulsion and deportation is not a significant factor in the organisation of their day to day lives. In contrast to refugees, deportation for labour migrants does not mean a return to a life- threatening situation. Deportation, should it occur, is merely a temporary disruption. There is always a strong possibility that one or two days after being removed from the country the illegal will be back in Germany at the same place of work. Moreover, as the vast majority of illegal workers come from countries within Europe and often no further than Poland, they are typically harder to spot as illegals. Secrecy and anonymity is thus not the same priority. The motivation of these illegals to reside in Germany only to work means that their entry into the state and the work they choose to do reflects the dynamics and requirements of the labour market. With the aim of seeking the highest wages (which in turn will generate the largest remittance payments), illegal migrants are commonly drawn to building sites, despite the fact that these are relatively “high profile” jobs. The more relaxed disposition of illegal workers manifests itself also in attitudes towards accommodation and social relationships. Their European-ness enables them to form social relationships with little of the anxiety experienced by refugees. The relative youthfulness of these illegals (the majority are males under the age of 40) tends to minimise the likelihood to significant health problems. As in Britain, however, accidents either at or outside work are an omnipresent threat. A trip to hospital makes it likely that their papers will be checked, thus rendering the illegal worker vulnerable to expulsion or deportation. While this view of labour migration makes for a rather positive picture of life as an illegal, recent developments have had a deleterious impact on the circumstances they face. Importantly, a distinct deterioration of in the employment situation within the Leipzig building industry (where many illegals are employed) has occurred. The signs of this deterioration have been lower wages, shorter periods of employment and, most alarmingly of all, frequent with-holding of the earnings of illegals by employers. Lacking the kind of safety net that provides protection to legal residents—and able to seek redress from the authorities only at the risk of exposure—illegals are often denied the basic resources needed to survive. According to one interviewee, many illegals currently find themselves spending a third of their time working, another third looking for work, and another third trying to collect unpaid wages. The factors behind the recent deterioration in conditions make improvements in the current situation unlikely. The wage bargaining power of illegals has been eroded by a steady flow of illicit workers creating a surplus labour supply. Paradoxically, this deterioration— most marked in the building industry—has had the effect of encouraging longer (and even semi-permanent) stays in Germany by those who would previously have only been commuter immigrants. Lower rates of pay, increasing insecurity of employment, and the task of tracking down wages already earned, mean that the illegals are forced to work longer in the country if they are to make their stay financially worthwhile. As they stay longer, their connections to home become weaker and ties with the Federal Republic are cemented. Consequently, illegal workers become less likely to return home and, like refugees, illegal migrants seek to carve out a permanent life in a country in which they have no legal status. The Refugee Question The study notes that more and people seeking asylum are opting for a life as an illegal in Germany. It is not difficult to understand why worker migrants might choose to live as an illegal in Germany for a period of time. Since the migration stop of 1973, when the Federal Republic ended its guest worker programmes, avenues for the official entrance of unskilled and semi-skilled labour migrants from non-European Union countries have virtually disappeared. But the reasons why someone entitled to protection in the Federal Republic would choose life as an illegal are less clear. In the course of the interviews, a number of reasons emerged. It was evident, first of all, that in some cases border guards had ignored official procedures by failing to process applications for asylum by people claiming refugee status. These immigrants had thus effectively been denied access to the determination system. A second reason involved in the difficulties associated with meeting the requirements of the 1951 Convention. A number of the interviewees explained that cultural barriers or a reluctance to relive traumatic experiences prevented them from recounting the story of why they needed protection in a way that satisfied immigration authorities. Together, these two reasons explain why there is a pool of people who have a powerful desire not to return home, yet lack official refugee status. The presence of illegal refugees also reflects a stricter attitude towards asylum at government and administrative levels, manifested most clearly in the amendment of the country’s broad ranging right of asylum in 1993. In particular, many illegals with a case for asylum fail even to submit an application for refugee status. Anxious to avoid a fate similar to those temporarily protected Bosnian refugees and many failed applicants for asylum deported in large numbers by the German government, many illegals decide not to join asylum queues. This lack of faith in the asylum system was reflected in the accounts of the refugee illegals themselves. Interviewees told of their belief that it was impossible as a matter of policy for the members of their particular ethnic group to get asylum and of concerns that they would be sent back to a “safe country” that they had passed through on their way to the Federal Republic. On the other hand, for some who might otherwise gain refugee status avoiding the official asylum determination system offered the advantage of a degree of autonomy—a life free from centralised accommodation, payment in kind, and work restrictions—that life within the official determination system would not. Life as an illegal was, for most refugees, a life of great hardship and secrecy. Yet it held out the prospect of a kind of security and peace of mind that was infinitely preferable to life back home or an extended period in the determination system. The study found that in spite of recent restrictive measures and a general decline in the number of official asylum seekers entering, Germany is facing a new asylum crisis. This is a silent and invisible crisis because the asylum seekers concerned gain protection through unofficial avenues. Yet is a crisis nonetheless; a crisis not only for refugees, who are deprived of official state assistance (including accommodation and a right to work), but also for civil society—families, friends, charitable organisations and advice centres—that are increasingly taking on the role of providing assistance to these unofficial asylum seekers. Since 1993, Germany’s “asylum crisis” has gone underground; it has not disappeared. The Costs of Illegality In the course of interviewing illegals and examining their social milieux, the study considered the costs to German society of illegal migration. Some of the costs were at the local level and readily calculable. Hospital expenses, for example, incurred when illegals become involved in road or work accidents or if they require treatment as victims of crime, typically have to be borne by the local social security authorities if no one else is responsible. In 1997 alone such expenses amounted to 262,623DM in Leipzig. The arrest and deportation of illegals represented another clear cost. In Germany most of these costs, in particular air travel and interpreter expenses, are borne by the local Aliens Authority. In 1997 these expenses amounted to 89,020 DM for a total of 229 persons. It is significantly more difficult and controversial to determine the indirect costs (and benefits) of illegal migration. The difficulties stem in large measure from the fact that it is in nature of illegal migration that those involved go out of their way not to have their activities recorded. Nonetheless, the study does provide a clearer picture of the economic costs associated with one area of illegal employment: the Leipzig building trade. In this industry, the demand for illegal labour is particularly high. This is attributable, on the one hand, to the building industry’s heavy reliance large inputs of manual labour and, on the other, to the intensely competitive nature of the East German building industry. In the case of the latter, employers of labour face a situation where the local workers’ requirement for relatively high wage rates and the holiday, superannuation, and sickness benefits associated with legal employment stands in tension with the need for competitive bids for work in a cut throat European construction market. The pressure to reduce labour costs in order to produce competitive tenders for contracts has been one that some employers have found impossible to resist. Typically, legitimate companies subcontract to firms created specially for the recruitment of illicit labour. The result is work for moonlighters (nationals paid “off the books”) and illegal migrants. The latter usually earn a fraction of the wage rate of locals. The benefits of such labour are obvious. Employers win because they are able to keep their businesses alive and competitive and thus able to make profits. Public and private clients win because the costs of construction are lower than they otherwise would be. And illegals win by being paid wages at rates which, while below those which nationals would accept, are above those they would receive in their country of origin. Those in the illegals’ countries, such as the families of the labourers, also seem to benefit through the flow of remittances back home. Do nationals that might otherwise have been employed in the place of illegals lose from this arrangement? Not obviously so. Rather than taking the jobs of legal local workers, illegals often substitute for moonlighting workers (illicitly working nationals). Furthermore, on the national level, it is plausible that German firms win contracts that would otherwise be out of their reach. The economic benefits of these contracts spill over into other firms and businesses in Germany that provide services or materials to the construction sites. Illegal migration, then, may have personal and social costs, primarily to the illegals themselves. But, in the case of the Leipzig building industry, the economic costs are not at all obvious. Crime and illegal migration Another cost of illegal migration is rising criminal activity. Intelligent discussion about the relationship between illegal migration and crime is, however, often impeded by misinformation and stereotyping. In particular, most discussions fail to distinguish between the different types of criminal activity committed by illegals. Different types of crime often signify, furthermore, different types of motivation and thus character. The study points to three types of crime associated with illegality: i. entry, residence and work in violation of immigration law ii. offences which stem directly from poverty and the circumstances of an illegal existence iii. deliberate, serious crimes motivated by a desire for personal enrichment The first type of crime is the least serious. It is simply the crime of illegality itself: that is, the unlawful crossing of state borders, illegal residence in the state, and violations of employment regulations. The laws violated here are local and national laws, such as the Aliens Act. A great of confusion over criminality arises, however, from the inclusion in criminal statistics of violations of this Act. A form of double counting occurs where the very illegality of these immigrants is used as evidence of their propensity to be involved in crime. Not only does this seem to distort the real association between illegality and crime, but it ignores the fact that, as the study found, a proportion of illegals in Germany do not realise that entering, residing, and particularly working in the country is a punishable offence. When interviewed, some illegals expressed surprise that honest work that in their view was ultimately of benefit to Federal Republic could constitute a violation of the law. There is greater awareness of the impermissability of a second type of crime: offences committed which stem from poverty and the condition of illegality. These acts typically involve shop-lifting and other types of petty theft. They are not rare, but they are crimes associated with circumstance rather than character. Typically, such crimes enable an illegal to tide over a temporary period of unemployment or to survive when their wages have been withheld. The gains from such activities are often used towards the maintenance of an uninterrupted flow of remittances back home, as much as towards supporting the illegal him or herself. The final category of crimes, those for personal enrichment, is also associated with illegal migration. This type of crime is usually committed by gangs who undertake a range of serious crimes, including car theft and burglary. It also includes much of the organised crime committed by mafia groups involved in the illegal trafficking of human beings, drugs and prostitution. This first and most common victims of this type crime are often the illegals themselves. Based on interviews, contacts and statistics, the German study estimates that of the three varieties of crime, the first two compose approximately 95% of the crime associated with illegals. That is, notwithstanding widespread public perceptions of a close association between illegals and serious crime, the overwhelming majority transgress only against immigration regulations or commit misdemeanours. In the vast majority of cases, illegals are law-abiding residents, desirous of living as inconspicuous a life as possible. It seems likely, moreover, that that criminality that does exist is concentrated amongst particular sections of the illegal population. The study found that refugees are least likely to be involved in serious crime because of their particularly strong desire to avoid contact with state authorities. The study ends its discussion of criminality on a worrying note, however. The author observes that the deterioration of the building industry, and the problems that illegals face in securing payment for the work they do, may result in an increasing level of crime as more illegals struggle to make ends meet. The efficacy of control The existence of illegal migration to and residence in Germany ultimately raises the question of whether state authorities can control this phenomenon. Certainly, German governments have taken a number of measures recently to increase their ability to restrict the entrance of unwanted foreigners. Multilateral and bilateral agreements between Germany and other European countries including the Schengen Treaty and the Dublin Convention, have enabled Germany to close off many traditional avenues for entrance. First country asylum procedures, the harmonisation of visa requirements, bilateral repatriation agreements with border countries (including Poland, the Czech Republic and Hungary) have come, since the early 1990s, to assist increasing numbers of border guards in creating a cordon sanitaire around the Federal Republic. Nonetheless, the study points out that the effectiveness of these measures has been reduced by the ingenuity of private, commercial and criminal migration networks facilitating illegal entry and residence. Furthermore, as legitimate border crossing becomes more difficult, the hand of the least desirable of these organisations, the criminal networks, is strengthened further. For it is only the most powerful, tightly-organised, and unscrupulous of trafficking and smuggling organisations that have the ability to respond to the increasingly sophisticated measures used by states to prevent illegal entry. Increasing levels of restriction can only be bypassed by corruption or bribery, or by sophisticated organisations that can match the levels of technology used by states. Tackling the rise of illegal migration networks has in recent years become an important priority for German officials. Yet the success of attempts to infiltrate these organisations and prosecute those involved has been limited by a number of factors. First, the considerable degree of cooperation and support that these groups enjoy from populations both within and without Germany. Second, by the ethnic homogeneity of these organisations, a factor which makes attaining information and infiltrating these organisations especially difficult. And finally, by the fact that these organisations are typically led and coordinated from outside Germany and, in some cases, from outside Europe. The Federal Republic has certainly increased the costs of entry in recent years. But while demand for entrance remains high, one can assume that criminal trafficking organisations will not be short of consumers for the services they offer. Conclusion Since the writing of Illegal in Germany, there have been signs that Germany has begun to move away from the fantasy of seeing itself as “not a country of immigration” to rethink some of the presumptions that currently guide entrance and membership policy. From January 2000, national laws allowed for the first time for citizenship to be acquired by those born in German territory to foreign parents.10 In the same year, debates began in earnest on the need to recruit skilled foreign computer workers, encouraging, in some circles, a wider discussion on the country’s need for a general immigration policy. 11 These are welcome developments, but they are relate only indirectly to the problems that continue to attract illegal immigrants to Germany. The widely-held perception that the asylum reforms of 1993 were a success, and the view that illicit migration is a product of external pressures rather than 10 Migration News, Volume 7, No 2, February 2000 at 11 Migration News, Volume 7, No 4, April 2000 at SPAIN Spain shares with Germany and the UK the self-perception of not being an immigration country, despite its status as a source country for large numbers of illegal migrants. Spain differs, however, from Germany and the UK in two, important respects. First, Spain became a popular destination country for immigrants—both legal and illegal— much later than Germany and the UK, each of whom had explicitly courted guestworker (and, in the British case, new Commonwealth) migration in the 1950s and 1960s as a way of meeting their labour needs. During this period, Spain was a source country for worker migrants, with many of its citizens eager to leave behind them a relatively underdeveloped economy and an authoritarian state regime. Only with the end of the Franco regime in the early 1970s, and the country’s integration into the European Community in 1986 did Spain experience the kind political liberalisation and economic development that stemmed emigration and increased the countries attractiveness as a destination for non-European migrants. Second, Spain plays a distinctive role as a transit country for forms of legal and especially illegal migration from North Africa (the Maghreb) and Sub-Saharan Africa. Migration movements across the Mediterranean into Spain and then onward to the countries of Northern Europe have made Spanish border control practices of especial interest to the European Union. Germany and France, in particular, have expressed concern over what are perceived to be the country’s relatively lax border controls. This question of Spain’s borders has become particularly important since the implementation of the Schengen Agreement in 1991, which creates an internal zone of free movement between signatory European states. The success of this zone relies on those states, like Spain, which form the external periphery of the frontier to restrict the entry of non-EU migrants into Europe. Consequently, a great deal of resources have been invested in Spain in an attempt to assist the country in tightening and modernising its border controls.12 Yet it would be wrong to see Spain merely as a transit country for Europe’s illegals. The rising number of illegal immigrants present (estimated by Spanish diplomats to have increased by 60% in 1999 alone) also reflects the fact that many illegals can eke out an 12 An introduction to the importance of Spanish border controls in Europe-Maghreb relations can be found in Sarah Collinson, Shore to Shore: The Politics of Migration in Euro-Maghreb Relations, RIIAF, 1997 existence in Spain through construction or factory work, or on farms in the country’s rural areas. The presence of illegal workers is not uncontroversial. Early in 2000 hostilities between locals and illegal farm workers resulted in violent conflicts in in El Ejido and Lepe in the South West of Spain. 13 But the need for at least some worker immigration is acknowledged by the Spanish government, as the recent decision to issue short-term work permits for some 300,000 non-EU foreigners in the agricultural and construction sectors indicates. 14 A much greater volume of legal migration would no doubt be required, if Spain were to be deprived the steady and cheap supply of illegal workers that currently service its economy. The effects of life as an illegal on the immigrants themselves is examined in depth in, From a life project to Civil Death: Irregular Immigrants in Spain. The study aims, in particular, to survey the day to day life of illegal immigrants that reside and work in Spain. As the study notes, these are people that by definition live outside the institutional legal structures that govern legal immigration. Equally, they have no role in shaping those social practices (racism, xenophobia, exploitation) that determine the quality of their lives. They experience what has Hannah Arendt described as the fundamental condition necessary for a lack of human rights, “the deprivation of a place in the world which makes opinion significant and actions effective”.15 The Spanish study differs in an important respect from the two other studies commissioned by the Jesuit Refugee Service. As with the other studies, the interviews with illegals form the bulk of the data for the report. However, the illegals interviewed by the Spanish team came from five separate areas of Spain (see introduction). The illegals originated from regions as diverse as the Maghreb, Latin America, Sub-Saharan Africa, China and Eastern Europe. The Spanish study was driven by two distinct, though interrelated, concerns: first, explaining how the experience of illegal migrants in Spain differs from that of legal immigrants; and, second, understanding how the experiences of illegal migrants evolve after making the initial decision to reside in Spain. The study suggests that the experience of illegal migration is best understood as constituting a “life project”: a personal plan to, over the course of time, escape economic deprivation, fulfil certain dreams of employment and social opportunity, or flee political persecution or human rights violations through the process of entry, finding employment, settling and regularising their status in Spanish society. Frequently, as the study makes clear, the initial aspirations involved in the life plan turn out to be little but a cruel dream, exposed as such by the sad realities illegals face upon arrival in 13 Migration News, Vol 7, No. 3, March 2000 at< http://migration.ucdavis.edu/archive/mar_2000- 11.html> 14 Migration News, Vol 6, No. 10, October 1999 at < http://migration.ucdavis.edu/. html> 15 The Origins of Totalitarianism, Andre Deutsch, 1986, page 296 Spain. Illegals are therefore forced to reassess their life project. By offering a more accurate picture of the realities faced by illegals in contemporary Spain, the study aims to contribute to the construction of life projects that take into account the true circumstances and opportunities for illegals in Spain. Who are the illegals? Spain has had very little recent experience in handling large-scale migration either in its legal or illicit forms. The number of illegals has probably risen in recent years. The most conservative estimates put the current number present in Spain at between 50-60,000, while others suggest that the number of Moroccans might be higher. The interviewees probably come close to reflecting an accurate cross-section of the nationalities of all illegals resident in Spain, with the majority being males from the North African countries of Morocco, Algeria and Tunisia and the remainder from Latin-America, Sub-Saharan Africa, China and Eastern Europe. The report differentiates between a number of ways that immigrants become illegal in the eyes of the Spanish state. Illegals in Spain are non-natives who have either: i. settled in Spain without a residence permit or failed to fulfil the legally required conditions to be awarded one; or who have resided in Spain without meeting the residence formalities required in their immigration permit. Alternatively, they may have become involved in illegal activities which invalidated their right to reside in Spain. While for some illegals the movement into an unofficial status in the state was a result of an unanticipated set of circumstances, the study found that most deliberately chose to enter and reside in Spain illegally. The study, moreover, distinguished between four different types of illegal migrants on the basis of their motivation for entering Spain. These illegals are described in the report as adventurers, survivors, investors, and refugees. Adventurers This category constitutes a large proportion of all illegals in Spain. Such illegals are typically young men drawn to the country by the attractive picture of Spain painted by the mass media and by friends who themselves have experienced a life of illegality. The label “adventurers” is intended to capture the risk-taking, future-seeking features of this category of migrant. The excitement they experience at the prospect of travel and exposure to a new cultural environment often blinds them, however, to the necessity of proper planning if their life as an illegal is to be anything other than disappointing. The study found that many illegals in this category had failed to take into account the time, expense and difficulties associated with illegal entrance into and residence in Spain. Survivors Arguably the majority of illegals in Spain fall into the category of survivors, those who are pushed, either by necessity or simply by misery to seek life outside their own country. Sometimes the reason for their emigration stems from generalised situations of poverty and economic failure in their country of origin; often, however, the reasons emerge from more individual features of their situation, such as personal financial problems or worries. Migration becomes a way out for those whose country offers no welfare state—and no safety net—to cushion economic failure or unemployment. This group is typically composed of men and women who either intend to start a family or who are trying to take care of one. Investors Not every illegal moves because of economic failure or the inability to survive in their country of normal residence. For some migrants, international movement is a sign of entrepreneurialism rather than desperation; more a matter of wisely investing in the possibility of a better lifestyle in the future than an act of necessity. Confounding widespread stereotypes of illegal migrants, this group possesses sufficient resources to survive in their country of normal residence, possessing, inter alia, financial assets and an education. Their migration is driven by an attempt to maximize their economic opportunities, rather than to meet their basic subsistence or social needs. Refugees As in other studies, the Spanish one found a significant proportion (though less than 20%) of illegals gave as their reasons for entering the Spain the fact that they had been persecuted at home on the basis of race, ethnic group membership, ideology, or political opinion or were attempting to escape generalised circumstances of violence or widespread human rights violations. While it is uncertain whether most of these people would have met the stringent requirements of the Geneva Convention sets for determining who is a refugee, some illegals claimed to have been forced to leave their country in order to avoid violence (often life-threatening violence) to themselves or to other members of their family. All of the members of this group were unable to find in their country of origin a “normal, quiet life” in which their rights were respected. The Migration Project In attempting to understand the distinctive experiences of illegal migrants, the Spanish study attempted to map the “life project” of typical illegals. The study distinguished between four different and distinct phases, each of which captures an element of the experiences faced by illegals. The four phases of the illegal experience were defined as: i. The formulation of migratory project; ii The immersion in illegality; iii. Routine daily life as an illegal; and, finally, iv. The reformulation of the migratory project. I shall now summarise the main conclusions of the study with reference to each of these stages. Formulation Reflection on the nature of illegal entrance and residence permeates the life of the potential immigrant long before departure from the country of origin occurs. The implications of life as an illegal are from an early stage the subject of much thought and planning. Illegals usually come to the attention of the public only when they reach the borders of Spain. But for the illegals themselves this seemingly early stage in the migration process is usually the culmination of many months and, in some cases, years of organisation and planning. The planning associated with illegal entrance and residence in Spain is typically the result a collective process. Long before departure occurs, relatives, friends and fellow workers are engaged in discussions on the likely costs and benefits of migration. This broad level of involvement reflects not only the substantial financial costs associated with the choice of migration: participants in the venture not uncommonly have to lend money from shady profiteers or criminals. It is also indicative of less tangible costs and, in particular, the emotional costs associated with long term separation from a loved ones. These costs tend to fall particularly heavily on members of the aspiring illegal’s family. In this early stage of planning discussion will also focus on what is needed for integration in the new country, something which may involve mastery of a new language. While immigration may be seen as involving a permanent separation from home, life as an illegal is typically seen as a temporary, transient stage. The interviewees typically expected that once established they would be able to move into full legal status as members of Spanish society. Two important observations can be gleaned from this examination of the initial stages of migratory project. First, the planning and resources required for successfully beginning life as an illegal, mean that illegality is rarely a haphazard enterprise. Those, moreover, who make the decision to migrate are neither the poorest nor the least literate; they are neither indigent, nor in possession of poor health. On the contrary, illegal migrants are typically family representatives—those that bear the investment of others. Accordingly, they are usually relatively well-off, stable individuals in good health, and thus capable of paying the costs of migratory project. A substantial proportion of those who enter as illegals are adventurers or even entrepreneurs, the makers of decisions that reflect calculated risks that make them a desired social type in many countries. Their departure is likely to represent a social and economic loss for the countries they leave. It is evident, secondly, that each illegal is representative of something more than a set of individual choices and decisions: each is a kind of social investment. An array of people, above all the illegals family, have usually invested time, money and emotional support in making their trip possible. Thus, in the movement into illegality, these immigrants carry with them not only their own hopes and aspirations, but also those of all who have assisted them in organising and seeing through their plans. The entry into illegality The experience of entering Spain is for many illegals a defining act of the utmost social, emotional and legal importance. Notwithstanding their planning, the most common response upon arrival is tremendous disappointment. As the report makes clear, arrival of the Spain typically constitutes the end of a dream for many illegals. Entry into Spain for illegal immigrants does not differ markedly from the situation in Britain in Germany. According to the report, entry usually takes one of the following forms: i. surreptitious entry, where the immigrant enters the country stowed away or hidden in a ship or other type of transport. The illegal might masquerade as a co-driver of a vehicle, or hide him or herself on a train that does not pass through customs; ii. the simulated entry: here the illegal enters with a legitimate visa (a tourist, student, or business visa, for example), but stays on beyond the visa’s expiration date; iii. the manipulated entry. In this case the immigrant uses (sometimes unknowingly) a criminal or commercial trafficking organisation to transport him or her across Spanish borders in return for a sum of money. These organisations usually offer transportation, illegal entry to the state, and the promise of a job upon arrival; iv. Finally, failed legal entry. This is where the immigrant enters the country with a passport or legal visitor’s visa and suffers some event (a theft, a loss, etc.) that deprives him or her of legal documentation and thus of official status. It is evident from this array of different pathways that the condition of illegality does not always begin with border crossing. Many illegals experience crossing the border no differently from regular, official migrants because at the time of entry that is exactly what they are. It is only the act of overstaying or violating the conditions of their entry permit that will lead to a change in their status. For others, the border crossing occurs as a result of a degrading trip under intolerable conditions, during which some of their fellow travellers have perished. Their pathway to illegality has, even before reaching the border, been an extremely painful and costly one; they may have come to realise already that they have put their trust in a highly exploitative trafficking organisation. It may be obvious to them early on that their experience in Spain will be one spent in a life of crime—possibly involved in drug selling—in order to pay back the exorbitant fees they owe. For all these reasons, the crossing of the border and arrival in the country is for many illegals the end of a dream. The dream nourished by ignorance, heavily embellished accounts of the success stories of other immigrants, and the promises of trafficking organisations eager to profit from inflated expectations, confronts head on the reality of a life without legal status. For those who have entered with the help of criminal trafficking organisations, the very first day is the beginning of a life of virtual servitude. Their freedom to find a job or to go where they please is constrained by their obligations to the criminal organisations to which they are indebted. Those who enter the country surreptitiously—on their own or with the help of friends and family—also find the border crossing a pathway to misery, abandonment, loneliness and poverty. They possess at least one advantage over the criminally trafficked, however. They can convince themselves, for a while at least, that their situation as one of the socially and legally excluded is temporary. Life as an Illegal According to the Spanish study, legal immigrants in Spanish society are typically socially marginal citizens. They face a variety a range of social barriers that distinguish their situation form that of full citizens in the polity, including social isolation, institutional and informal racism or xenophobia, a disproportionately small share of society’s economic resources, and very restricted access to widely-valued occupations and positions. Illegals, by contrast, in Spain are most accurately described as civic dead citizens. Not only do they fail to enjoy almost all of the basic goods of citizens—legal protections, minimum of basic social respect—but they are locked into a position of social and political invisibility. The suffering that they experience is deprived of any social or political significance because illegals have no public stage on which to act to articulate their grievances. The invisibility of illegal immigrants is doubly reinforced. On the one hand, illegals do not exist officially for the administration; on the other hand, this invisability is what enables their continued residence in Spain. Few things illustrate more starkly the difficulties associated with their new life in Spain than their lack of an official identification card, the acquisition of which soon becomes an idee fixe for the illegals. The card, a practical remnant of the previous authoritarian rule in Spain, is a generalised and operative instrument of Spanish life. Possessed in several varieties by all legal residents in Spain, the card is needed to sign a valid contract of employment, to make a will, to register at a hospital, to get married, to have legitimate children, to gain welfare benefits, or to receive a pension. The desire to attain this guarantee of minimal inclusion in Spanish life leads illegal immigrants into a new round of law-breaking activity. Typically, illegals must bribe, steal or engage in an act of fraud to gain this token of recognition. The absence of such a card is, in the Spanish case, a defining feature of the civically dead. While the lack of an identification card typifies the problems they face, illegals are also victims of real social and economic abuses that are hidden from the light of the public realm. Employment for illegals is typically sporadic and conducted outside normal trade union and legal protections. Conditions for those reliant on criminal networks are often little less than informal versions of slavery, with some illegals press-ganged even into criminal activity in the service of these networks. Any member of a society—legal or illegal—can, it is true, be subject to private, informal networks of exploitation. What is truly distinctive about the situation of illegals is not simply that they cannot approach those social representatives, like the police and civil servants, that would normally protect people from such exploitation; it is that these representatives, along with businessmen and business women, often benefit systematically through bribery, fraud, kickbacks or simply cheap labour from the illegal industry in Spain. The collusion of public officials in exploitation creates in illegals a cynical and untrusting view of Spanish society and its institutions, bringing them to question whether there is a pathway out of illegality. In addition to injustices of these types, the illegal often faces problems associated with social isolation which grow over time. Separation from family, the inability to enter into marriage because of the lack of an identification card, and the difficulties associated with making friends in a environment where trust is a scarce commodity, all conspire to isolate illegals and prevent them from maintaining or attaining the kind of networks that might provide them with comfort and support. Why, in the midst of such misery, do they remain in Spain? Why do they not simply return home to a life that could scarcely be worse? The answers are varied. For the refugees, with the threat of violence or imprisonment facing them upon return, life simply would be infinitely worse at home; even for those who avowedly are not refugees, the economic circumstances they face in Spain are often better than those they would face upon return; for others still, effective enslavement to the criminal networks and the debts they have accrued provides the reason for remaining. Finally, many, even after all they have endured, still manage to cling to the hope that their situation in Spain will one day improve. Reformulation The Spanish study found that illegals were often obsessed with the idea of the future. Every immigrant nourishes a dream that provides a reason for going on. The immigrant is a person who has left their country, their social world, and their culture thinking about improving their plight. The hardships of immigration are seen as a price to pay for a better future. Regularisation, the grant of legal residence in Spain, is the usual focus for this dream. This goal might be achieved through a government-introduced amnesty on illegal migration, or finding of an employer willing to offer the illegal an official contract of employment (that would lead to the gaining of a work permit.) The hope for just such an occurrence is reflected in a survey of illegals undertaken by the Spanish team. In that survey, some 60% of the illegals interviewed who had been in Spain for less than six years still described themselves as “hopeful” as opposed to “despairing” about the future. Even after more than six years presence in Spain, some 48% of illegals still felt “hopeful”. Significant as these figures are, however, they obscure the reformulation of the migration project that illegals have undergone while in Spain and, in particular, a general lowering of their expectations. A situation they once thought would last months—their transition from illegal to legal status—turns out to the take years. The wait may not result in complete despair, but it certainly makes illegals increasingly desperate. For many, moreover, this wait will be prolonged by an ignorance—and distrust—of the pathways that might lead them out of their current situation to a state of what might be called “civil resurrection”. In the social realm this resurrection might be achieved by the limited and important services provided by charitable institutions and NGO’s that could furnish them with at least some of the social goods they need, including housing, health treatment and education. In the legal institutional realm, the limited avenues for lawful residence in Spain as immigrants (including occasional amnesties) might offer one way of improving their situation. Spain and illegal migration Illegal migrants entering Spain come into a country that still views itself predominantly as a country of emigration rather than a country of immigration. In the gap between this dominant view of Spain and the reality of immigration, illegal migrants dwell. Becoming a member of the world of illegal residents means, all too often, entering a world of emergency, bare subsistence, social isolation, exploitation, and insecurity. One reason why such an undesirable state of affairs can develop and perpetuate itself is because of the lack of professionalism that characterises the way the project of illegal migration is planned out an carried through. The sources of information that illegals rely upon in making the life-shaping decision of migration are typically informal and consequently distorted, deceptive and inaccurate. The lack of official—or even accurate, non-official— information about the opportunities really available and experiences actually awaiting them in Spain leads itself a dramatic mismatch between the aspirations of illegals and realities they confront. One suggestions made in the report is a much greater role for official organisations, in particular Spanish embassies or consulates in the countries of origins of illegals, in providing potential immigrants with a much more accurate picture of what they might face upon arrival in Spain. At the moment, there are too few informational correctives to the exaggerated accounts of many illegals themselves or the self-interested perspectives of smugglers and traffickers. The lack of professionalisation is indicative of governmental and societal myopia in the face of the reality of illegal migration in Spain. To be sure, some attempt to repond to illegality has recently been made through sporadic programmes of mass regularisation and a police-led approach that threatens mandatory deportation for those in violation of the country’s immigration laws. But these responses have not yet been undertaken in a way that could be said to amount to coherent—let alone a rights-respecting—policy for dealing with illegal migration. They have, moreover, never been adequately supplemented by other measures that might make for a more comprehensive strategy, such as the opening up of avenues for temporary migration from source countries, or the promotion of voluntary return programmes for illegals dissatisfied with their lot in Spain. If it is not completely accurate to the say that illegals do not exist officially for the administration in Spain, it is unfortunately true that they exist as a problem only fitfully. The losers in the current state of affairs are not only the illegals themselves, though they certainly bear the heaviest costs. Nor is it Spanish society, which is arguably robbed of the presence of an eager and willing group of people who might be contribute more productively under the right circumstances. The quiet losers also include private organisations, such as NGO’s and charitable institutions, who struggle to cater for the needs of illegals with little support from the Spanish state. With the state prepared to ignore the problem of illegal residence, the task of aiding these men, women and children is effectively privatised, passed on to those organisations who find it more difficult to ignore an obligation to those in need. Conclusion In one recently published estimate 200 people perish each year attempting to cross the turbulent waters between Spain and Morocco.16 There is little sign that the mixture of unemployment, unstable social and political conditions, and the promise of a better life that drive people from their homeland and attracts them to Spain is becoming less powerful. Yet recent measures by governments have improved the lot of illegals within Spain. A legalisation programme during February and July 2000 had attracted more than 80,000 applications by June 2000.17 A large number of illegals are thus likely to rescue themselves from the position of being civic dead citizens. The ranks of illegals, however, will quickly be replenished. It was announced in May 2000 by the head of the Spanish enclave of Cellta that some 25,000 illegals are already waiting between Tangiers and Al Hocenia to enter Europe. 16 Migration News, Vol 6, No. 1, January 1999 at < http://migration.ucdavis.edu/. html> 17 Migration News, Vol 7, No. 7, July 2000 at < http://migration.ucdavis.edu/. html> IV. Conclusion and Recommendations NO DEMOCRATIC STATE CAN TOLERATE THE ESTABLISHMENT OF A FIXED STATUS BETWEEN CITIZEN AND FOREIGNER... MEN AND WOMEN ARE EITHER SUBJECT TO THE STATE’S AUTHORITY, OR THEY ARE NOT; AND IF THEY ARE SUBJECT, THEY MUST BE GIVEN A SAY, AND ULTIMATELY AN EQUAL SAY, IN WHAT THAT AUTHORITY DOES. MICHAEL WALZER18 The country reports commissioned by the Jesuit Refugee Service, which I have summarised, all contain in their complete versions, a range of conclusions about how at local and national level the challenges associated with illegal migration might be tackled by governments and NGOs. The purpose of this final chapter is to consider what conclusions and recommendations regarding the phenomenon of illegal migration might be made for policy at European Union level. In the process of spelling out a range of conclusions and recommendations, I will also address here a number of other issues relevant to the responding to illegal migration. These include: the political constraints facing policy construction, the rationale behind the policies recommended, and why certain elements of an illegals policy are best focussed at European Union level. Conclusions about illegal migration in Europe I will begin by outlining seven conclusions that can be derived from the country studies (Germany, the UK, and Spain) that appear of general relevance to all European Union countries. First, the life of illegal entrants and residents is usually a rightless existence without the basic protections of criminal and civil law and with no legal avenues by which to assert an entitlement to just and humane treatment. Illegal migrants in Europe typically find themselves in a position where they reside and work in a European country, but are without the basic protections associated with legal residence. They are, in the words of the Spanish report, the “civic dead”. All of the reports illustrate furthermore that illegals are frequently prey—and always vulnerable—to exploitation and deception by: employers (who often refuse to pay them for work done); traffickers and illicit migration networkers (who often exploit or deceive them) and even members of their own ethnic communities (who often take advantage of their enfeebled market position in the area of housing or medical care). All immigrants are, of course, vulnerable in the process of adjusting to a new society. For illegals, 18 Spheres of Justice, Basic Books, 1983, page 61 however, this state of vulnerability is permanent and dictated by the need to avoid the attention of the authorities if they are to remain in the country. Second, the term “illegal immigrant” (and resident) obscures the many diverse ways that individuals become illegal. Illegal immigrants that enter the state without governmental permission (such as those smuggled in or those who cross unofficially at the border) and those who enter with fraudulent or falsified documentation, receive the most public and media attention. However, many illegal migrants, are illegal residents, not illegal entrants—people who have entered the state legitimately but whose permission to stay has expired or been invalidated. These people have often drifted into illegality, have lived law- abiding lives in their countries of residence, established deep community ties, and have resided in the host state for many years. To distinguish between various groups of illegals in this way brings into question the view that illegals are those who whose residence has never been consented to by the host government. In the latter case, for example, consent to enter and reside has, at some point, been given to the immigrants, but it has later been taken away, or the terms on which it has been given have been violated. Third, the term illegal immigrant (and resident) tell us nothing about the diverse and varied motivations that individuals and families have for becoming illegal. Illegals may choose to enter temporarily or permanently reside in the the state for one or more of the following reasons: they are de facto refugees escaping political persecution or violence; they desire economic advancement; they wish to generate remittances for family members back home; they wish to join family members in the host country; or they simply seek to leave behind them a situation of grinding poverty. Current debates about illegality usually proceed on a one-dimensional a view of illegal migration and the forces that motivate it. This has implications for the proper policy responses. Illegal migration cannot, for instance, simply be solved through economic measures, though they might form an important part of any response. Any attempt to reckon with the phenomenon must be multifaceted. Fourth, de facto refugees form a substantial proportion of illegal entrants and residents in European countries. A range of factors, including distrust of state asylum determination procedures, reluctance to be detained, and fears about return, lead some refugees to choose life as an illegal. The numbers of those in this position are, moreover, probably boosted by the way that restrictive measures force legitimate refugees into illegal activities to enter the state in the first place, dragging them into an underworld that has its own entanglements and fetters. The phenomenon of the “refugee illegal” results in a privatizing of the assistance provided to refugees (in accommodation, health, and welfare, etc) as ethnic communities, friends, relatives and non-governmental organisations become providers of support in lieu of governments. This results in significant social and economic costs for these groups and for the refugees themselves. Fifth, restrictive entrance practices towards asylum seekers and illegal migrants (such as the use of visas regimes and carrier sanctions) have helped to empower criminal trafficking organisations and commercial illegal networks. These organisations owe their existence to a dramatic mismatch between the number of people demanding entry to Europe and the very limited legal avenues for entrance. As these practices grow increasingly restrictive, the organisations most prepared to bribe, forge, and use violence are likely to grow stronger and more dominant at the expense of more scrupulous informal networks. The cost of this growth will be increasingly large numbers of illegals sucked into criminal activity, especially prostitution and drugs. The development of these organisations might not, in itself, present a reason for abandoning restrictive entrance pratices (anymore, for instance, than the existence of tax fraud is a reason for abandoning taxation), but it does show the wisdom of thinking of alternative ways of managing illegal migration. Sixth, the relationship between illegal migration and crime resists popular stereotypes. As the German report makes clear, most of the crime committed by illegals is the result of circumstance, not character. Serious crimes for personal enrichment are rare, and crimes that stem simply from the reality of vulnerability and exploitation associated with illegality and rightlessness are far more common. Illegals themselves are probably more likely to be victims than perpertrators of crime. By increasing the protections which illegals can avail themselves of, much of the petty criminality associated with illegality would be likely to diminish. However, the ominous rise of criminal trafficking organisations may, if not stemmed, have important implications for the relationship between illegality and crime. Seventh, some illegals are dissatisfied with their experience of life as an illegal and, failing a chance to regularise their status, would probably return home if offered the opportunity. The reports indicate that many illegals may not so much be resident in Europe, as trapped in it. Increasingly tight restrictions on entrance that make return migration difficult (as was evident in the British case) and the need to recoup unpaid earnings (evident in the German case) can prove strong barriers to return. If provided with the right kind of assistance, some (non-refugee) illegals would no doubt cut their losses and return home. Furthermore, because the indignities of a rightless and secretive existence can rob illegals of the psychological resources required for returning and rebuilding their lives, current government policies that are implicitly built on the assumption that the deprivation of rights will discourage illegal migration are problematical at best. Eighth, in spite of active attempts by governments to clamp down on illegal entrance and residence, the number of illegal migrants in Europe does not appear to be declining in volume and is probably growing. Economic demands within host countries, steep inequalities in security and opportunities between states, the reliance of communities and families back home on the remittances, war, widespread social and political violence are likely to continue to make an illegal existence relatively appealing for many people. Appalling as they may be, the conditions many illegals face are preferable to the circumstances they would face back home or a worthwhile trade off for a period of earning relatively high wages. While policies can be constructed which deter or prevent illegal migration from poorer, more unstable countries, the presence of large numbers of illegal migrants in Europe, and the injustices they face, are not going away in the near future. Political reality and illegal migration These conclusions speak to the need for some general policy responses. The rightlessness of illegals in our midst, and the appalling conditions they daily confront, both to arrive and to survive in Europe, provide powerful ethical reasons for responding their plight. This is especially true for countries claiming to be liberal democracies that declare their respect for fundamental human rights of all people in their territory. Important as the task of improving the situation of illegals is, policy measures must be informed by considerations of what is practically possible. In particular, measures advocated should take account of the following considerations. First, policies must recognise that European states will not abandon the right to control the entry of foreigners to their territory for the purposes of residence and citizenship. The problem of illegal migration is thus not going to be solved by the end of border control. While it is an interesting question whether immigration controls can be vindicated ethically, 19 state officials in European countries, and the citizens they claim to represent, believe overwhelmingly that control over entry—qualified by a duty of asylum—is one of the defining acts of a democratic community. Where this right has been ceded (as it has in the case of the EU countries), this has occurred only under tightly controlled circumstances. A distinction between legal forms of migration and illegal forms is thus likely to be a feature of state policy for a long time to come. We may therefore assume that states will not assent to policy measures that are likely to lead to increased levels of illegal migration. Second, the problem of illegal entrance and illegal residence is not going to disappear in foreseeable future. Indeed, as I noted above, illegal migration movements are probably growing in volume. Illegal migration has been around for as long as states have claimed the right to exclude foreigners from their territory. But rising inequality in living standards between states, developments in transportation and communication, and growing migration networks have made illegal migration a significant and deeply intractable social phenomenon. This does not mean that measures to control illegal migration will prove futile. The volume of this migration may be reduced by policy responses by states. But illegal migration will not be 19 See, for example, Matthew J. Gibney, “Liberal Democratic States and Responsibilities to Refugees”, American Political Science Review, Vol 93, No. 1, March 1999 ended completely. For this reason the question of the treatment we owe to illegal residents will remain an important one for states committed to upholding human rights. Third, the goal reducing illegal migration is potentially in conflict with the goal of improving the conditions faced by illegal residents. Extensive rights to health care, education, employment protection, political participation, or residence might serve to attract more people to life as an illegal. European states are thus unlikely to recognise wide-ranging entitlements for illegals lest they encourage more migrants to violate immigration laws. The recognition of such rights, one could argue, would make state officials vulnerable to the charge of hypocrisy for sending mixed messages to illegals. This conflict should not be exaggerated. It seems plausible that granting well-defined, limited rights, such as a right of access to emergency health care, would not have much of a magnet effect on illegal migration. Furthermore, current practices hardly insulate officials from the accusation of hypocrisy. Is it not hypocritical for governments to proclaim the importance of human rights abroad and yet ignore egregiously exploited illegals at home? Nonetheless, it is important that policy recommendations balance, on the one hand, the need to treat illegals in a humane and rights- respecting manner with, on the other hand, the legitimate aspiration of states to avoid attracting increasing numbers of people to enter and reside illegally. Recommendations for action Informed by these three considerations, I will now outline a set of recommended policy positions for those advocates aiming to improve the situation of illegal migrants in Europe. The recommendations that follow do not comprise to a complete, coherent policy programme for dealing with illegal migration. The JRS and other advocacy organisations do not need such a programme. One can safely assume that over the next few years European governments will continue to develop policies that act to prevent and deter illegal migration through, for example, the signing of readmission agreements, facilitating the process of deportation and removal, and exchanging information about migration and trafficking networks. Rather, the following recommendations are policy positions that might be used at the European level to respond to illegal migration in a humane and rights respecting manner. They can best be seen as a counter weight—or as a supplement—to the kinds of deterrent and preventative measures that European countries are likely to implement. 1. Continued support and advocacy for more inclusive asylum policies, in particular by operationalising categories of asylum for refugees and other forced migrants broad enough to capture the realities of the refugee experience. Rationale A substantial proportion of all illegals are “refugees”, in the broad public understanding of that term, that is, people who have fled their country of normal residence to escape violence in the form of civil war, militia groups or from conditions where the violation of basic human rights is widespread. Currently, interpretations of the Geneva Convention differ amongst states (German and France, for example, uniquely refuse to recognise as Convention refugees victims of non-state agents of persecution). One result of these differences is that refugees unlikely to gain official asylum swell the ranks of illegals, in order to gain protection informally. By operationalising at European Union level a relatively broad, common intepretation of those eligible for refugee and humanitarian status, many of those people who are currently illegal would receive the protection to which they are are morally and—in some cases—legally entitled. The current process of the increasing informalisation of asylum could thus be halted. 2. Continued support and advocacy for the relaxing of measures that attempt to prevent and deter asylum seekers from entering European Union countries. Rationale It is increasingly obvious that measures that bar the entrance of asylum seekers and illegal migrants also bar the way of refugees. One result is that those who desperately need asylum are forced to rely on criminal traffickers for entry, the grip of which many find difficult to shake off even long after they have entered the receiving state. For many others, deterrent measures, such as detention and the denial of welfare rights, which diminish the gap between the rights and protections available to legitimate asylum seekers and the life of an illegal, make illegal residence increasingly viable. While the numbers of official asylum applicants living in European states goes down, there is reason to believe that the number of unofficial (illegal) asylum seekers is going up. The costs of the current use of preventative and deterrent measures for legitimate refugees need to be made more clear and states need to take greater care to ensure that these practices do not result in the refoulement of refugees. States need to also to acknowledge the intimate link between restrictive entrance policies and illegal migration. 3. The public acknowledgement that many (if not all) of the basic human rights articulated under established and developing European charters and conventions apply to all people living in Europe, legal and illegal residents alike. Rationale The minimum rights that illegal migrants should be able to enjoy include: i. a right to emergency health treatment; ii. a right to education for their children; iii. the right to shelter and food if destitute; iv. a right of access to an ombudsman or other authority (independent of immigration enforcement agencies) to investigate instances of violation of contracts or health and safety laws by employers and landlords. These basic rights capture the minimal responsibilities that any humane and democratic state has to individuals present for an extended period in its territory. They represent a minimal standard of treatment that reconciles the professed belief of European states not to collude in exploitation and preventable suffering with the aim of not making the rights of illegals so extensive that they serve to attract more people to life as an illegal. If states have a valid right to exercise border control, illegal immigrants should not have the same rights as permanent residents lawfully admitted to the state. However, any one present in a European state should have the right to the minimum protections outlined above by virtue of their humanity. They should be able to exercise these rights free from the risk of penalty (and, in particular, deportation). The European Convention on Human Rights and the European Council’s Charter on Fundamental Human Rights (which is currently under negotiation) both offer sources of legal protection for illegals living in European countries. Greater effort needs to be made to spell out the implications of these human rights instruments for the responsibilities of states to illegal migrants. 4. Support for the establishment of quasi-judicial bodies in European states to which illegals could apply to regularise their status after a period of seven years of continuous residence. Rationale After seven years, European states should be obliged to consider the strength of an illegal’s claim to legal residence, preferably by allowing individual cases to come before an independent body comprised of a mixture of NGO and government officials, and members of the state’s citizenry. This body should make decisions concerning regularisation, taking due account of a range of factors, including the individual’s: family ties in the country, the hardships resulting from life as an illegal, the opportunity for return, and criminal record. The short term witholding of some of the rights of permanent residence may be a justifiable way of deterring illegal migration, but no state has the right permanently to disavow responsibility for illegals on the grounds that they have never been party to an explicit contract with the state. While the official status of illegals may be dubious, after a period of living, working and residing in the state, they come to form an implicit contract with civil society that the state should acknowledge. The period of seven years reflects the way this contract develops over time, as well as the importance of not making illegal residence an easy pathway for membership in the state. But the argument for a faster rate of status regularisation is even stronger when illegals present in the state are deprived those minimal rights outlined in point 3 above. 5. Support for European Union sponsored offices that can provide advice, information and financial assistance for those illegal migrants who wish to return home. Rationale For some, life as an illegal falls significantly short of the original expectations; rightlessness, poverty and a general sense of hopelessness combine to create a situation where illegals lack the resources to embark upon a return home. The provision of impartial travel advice and financial assistance both with the return journey and with the costs of starting up again back home would not only respond to the desires of many people currently stranded in European Union states, it may also encourage many others to think about return. Assistance in return is already commonplace for temporarily protected refugees; it would make a great deal of sense to consider its extension to illegal immigrants. 6. Consider supporting the implementation of temporary worker migration programmes specifically targetted at those groups of people who currently form the bulk of illegal migrants. Rationale Many see the cure for current migratory pressures to the EU as lying in the creation of avenues for legitimate migration from Southern countries. The issue is far from simple. European governments are generally reluctant to accept temporary immigration from poorer countries because of the likelihood that immigrants would remain after their permission to stay expired. This problem should not be underestimated. However, there is a strong argument that the moderate, controlled temporary migration schemes for young workers (those who make up the majority of all current illegals who enter primarily for economic reasons) might be successful under the right circumstances. As the German and Spanish reports show, illegal entrance and residence is for many immigrants a part of a family or community migration strategy of temporary work abroad for a specific purpose. Temporary migration schemes might enable states to work “with the grain” of these community and family strategies, by offering migrants a brief, legal sojourn abroad. The likelihood that the migration would be temporary would increase if such schemes used positive incentives for return, such as requiring worker migrants to place some of their earnings in a superannuation style scheme that could only be drawn on upon return home. 20 Functioning temporary migration schemes that work would not only cut the ground from under migrant traffickers, may lead non-Europeans to see the migration policies of European countries as more legitimate and fair. 7. Support for comprehensive programmes to improve the economies of illegal migrant source countries through technological transfer, investment, and more equitable trading arrangments. Rationale. Much illegal migration takes place because of inadequte employment and income generating opportunities in the countries that border Europe. As was noted in the Presidential conclusions of the recent EU summit at Tampere in October 1999, “The European Union needs a comprehensive approach to migration addressing politics, human rights and development issues in countries and regions of origin and transit”. It is 20 Some of these measures used by European states to encourage the return of temporarily protected refugees are discussed in Matthew J. Gibney, “Between Control and Humanitarianism: Temporary Protection in Contemporary Europe”, Georgetown Immigration Law Journal, Vol. 14, No. 2, Spring 2000, pp. 689-709 easier to recognise the need for a comprehensive programme than actually to construct (let alone to implement) one. Nonetheless, the increasing recognition to address some of the more egregious inequalities between countries, provides an opportunity for the development of practical policies that might improve the employment prospects of the Maghreb region and Sub-Saharan Africa. Illegal migration will not, however, be completely eliminated through such policies. Many illegals to Europe in search of asylum, not employment. But improving conditions at home is one important way of combatting illegal migration. Illegal Migration: An issue for the EU Most of the measures I have outlined would best be dealt with at European rather than at national level for three major reasons. First, the interconnectedness of illegal migration movements suggests that need for coordinated action by European states. States acting individually will be justifiably reluctant to humanise the conditions faced by illegals in the way that has been outlined, lest they act as a magnet to attract those illegals who would ordinarily head for another state. By aiming for policies that humanise the conditions of illegals across all member states, the chances of making the illegal burdens of states more unequal are lessened. Second, any serious attempt to tackle the economic and political causes of illegal migration (as advocated in recommendation 7, for example) will take significant financial resources and, importantly, international cooperation in the realm of trade and investment. Only EU states acting together are likely to be able to deliver the level of resources and coordination necessary to address this multifaceted problem adequately. Third, Europeanizing the issue of illegal migration (and responses to it) offers the opportunity to lift the issue out of the kind of over-heated debates that usually characterise discussion of immigration at national and local level. The kind of long-term perspective required for adequately addressing this issue is probably best freed from the more day to day concerns which tend to preoccupy domestic politics. Conclusion: The ethical challenges of illegality I suggested at the beginning of this synthesis that the situation of illegal migrants in Europe has suffered from the fact that all of the major players have powerful incentives for remaining silent. Yet there is another reason why the challenge of illegal migration remains largely unmet and why the responses of European governments to it have so far remained sporadic and capricious: the complexity of illegal migration as an ethical, as well as a social and political, problem. The political theorist Michael Walzer has invoked the fundamental principle that all those subject to a liberal democratic state’s authority should, as a matter of right, be given a say in what that authority does.21 Yet this principle, originally formulated in response to the illiberal practices of Western European states during the 1950s and 1960s, who recruited guestworker migrants but deprived them of most civil and political rights, continues to be seen as unsuitable as an account of the responsibilities of states to illegals. For illegal migrants have not gained the consent of the state to enter or to reside where they are. Not only is there no explicit contract between the state and the illegal migrant over residence, but the migrant has transgressed the state’s entrance laws. In response to any violation of their rights, European states thus argue that they are justified in demanding that the illegals return home. There is no simple way of rebutting this argument. Yet what the reports summarised here clearly do is demonstrate the cracks in this traditional justification for neglecting the rights of illegals. For the argument becomes highly questionable when governments turn a blind eye to illicit labour because it boosts failing industries or enables labour-starved areas of the economy to flourish. Demanding that illegals return home, furthermore, is an inadequate answer to those illegals who are de facto refugees, people residing outside their country of origin because it has become a dangerous place to be due to war, human rights violations, or political persecution. Finally, an appeal to lack of consent cannot legitimate states ignoring systematic human rights violations within their own sphere of power and authority. Illegal migrants may not be owed the benefits of citizenship, or even permanent residence. But they are surely owed a modicum of protection against violence, intimidation and exploitation, vices many of them currently experience on a daily basis. The ethical problems posed by illegal migration cannot, then, be magicked away by noting that the presence of these men, women, and children in Europe is illegal. As the practical pressures of illegal entrance grow over the next few decades, Europeans will be forced to confront questions about what kind of immigration policy they should implement and how they should limit human trafficking and migrant smuggling. But if they are brave enough, illegal migration will also lead them to question how serious they are about human rights. For the continent’s response to illegal migration will help determine whether Europeans are able to create ethically defensible forms of society fit for a new millennium. Annex: The JRS and Illegal Migration 21 Spheres of Justice, Basic Books, 1983, page 61 Should illegal migrants be a concern of the JRS, an organisation specifically concerned with addressing the needs of refugees? Here I will briefly address some of the issues raised by this question. In narrow terms, the answer to the above question must be “yes”. The connections between illegal migration and the traditional constituency of JRS-Europe (refugee and asylum seekers) are obvious from the country reports summarised here. These reports show that some illegals are (de facto) refugees or, more generally, forced migrants. Drawing a line in the sand that makes only those legally present in European states the concern of the JRS cannot be a credible policy for an organisation committed to the welfare of refugees. This is not least because the distinction between legal and illegal immigration is a political construct, created to serve the purposes of a particular form of political organisation: the modern nation state. Moreover, the boundaries of legality and illegality are fluid, changing over time. This is indicated in the proceeding report by the way that tougher policies towards asylum seekers encourage some refugees to try life as an illegal. There may be political reasons why the JRS would define its sphere of concern to those legally in the state, but the distinction between assisting legal and illegal refugees has no prima facie ethical weight. Not being beholden to the classifications of states does not mean that the JRS must abandon all discrimination when dealing with matters of immigration. The organisation could still adopt what I will call the minimal strategy of concerning itself with illegal migrants only to extent that doing so touches upon the rights, welfare and needs of refugees. This strategy would see the organisation concentrate only on those illegal migrants who are seeking asylum or have specifically refugee-related needs. In terms of the recommendations I have outlined, the most important, should these strategy be adopted, would be 1 and 2, which already form an important part of JRS activity. It seems to me perfectly defensible from an ethical perspective for the JRS to adopt the minimal strategy. Inevitably, however, any organisation that concerns itself with alleviating the suffering of forced migrants will be tempted to consider a broader response to illegal migrants. The maximal strategy would involve the organisation servicing the needs and promoting the interests of all illegal migrants, regardless of their relationship to refugeehood. There are good reasons, also, for considering this approach. Firstly, many (though certainly not all) illegals leave their country of origin to escape dire economic conditions or to find employment. They are thus plausible candidates for being seen as forced migrants, in the broadest sense of this term. Secondly, as we have seen, there is definitely a need for some NGO to take up the cause of illegals at European level. The JRS would could conceivably take on the role. Regardless of how the JRS defines its role, the need for some existing organisation, or even a new, purpose-built organisation to take on the task of championing the rights and needs of illegals is undeniable. The issue of illegal migration will become more important in coming years and illegals will continue to need support. The role of JRS plays responding to these needs should be a matter of negotiation with other NGO’s that respond to the needs of immigrants and refugees. But the right strategy for the JRS also needs to be the subject of debate and discussion within the organisation itself.